Prenuptial Agreements in Texas

Learn more about prenuptial agreements in Texas.

Nothing’s more romantic than a wedding. But the unfortunate reality is that a sizeable percentage of American marriages end in divorce. That’s why it’s best to consider your financial reality before you get married. You may be surprised to learn that you need a prenuptial agreement.

What Is a Prenuptial Agreement?

A prenuptial agreement is an agreement between prospective spouses made in contemplation of marriage. Generally speaking, prenups control the division of property, such as land, buildings, retirement accounts, and automobiles.

Prenuptial agreements have to be finalized before a marriage occurs. They become effective as soon as the parties are legally married. Prenuptial agreements are also known as premarital or an antenuptial agreements in some jurisdictions.

Who Should Get a Prenuptial Agreement?

If any of the following scenarios apply, couples should consider getting a prenuptial agreement:

  • One or both spouses are bringing major debt into the marriage.
  • One or both spouses are bringing property into the marriage.
  • One spouse is much wealthier or poorer than the other.
  • One or both spouses are remarrying.
  • One or both spouses have children.
  • One or both spouses want to secure their estates.

This list is non-exclusive. If you have any doubts about whether you should enter into a prenuptial agreement, contact a Texas family law attorney for more advice.

What Issues Can a Prenuptial Agreement Cover?

Prenuptial agreements in Texas can include some or all of the following issues:

  • the rights and obligations of each spouse regarding property
  • who has what rights to buy, sell, use, transfer, exchange, abandon, lease, use, assign, create a security interest in, mortgage, encumber (meaning, to take a loan against something), dispose of, or otherwise manage or control property
  • the allocation of property if one of the spouses dies or if the parties separate or divorce
  • rights to alimony
  • the making of a will, trust, or other arrangement to facilitate the provisions of the prenuptial agreement
  • the rights to the death benefit from a life insurance policy
  • the choice of law that governs what state’s law will interpret and decide the case if a dispute arises about the prenuptial agreement, and
  • any other matter that doesn’t violate Texas’s public policy or criminal laws.

Can a Prenuptial Agreement Determine Child Custody, Child Support, and Alimony in Texas?

In Texas, premarital agreements can’t limit the amount of child support that one parent would have to pay to the other in the event of a change in child custody. The reason for this is that the right to child support belongs to the child, not the parent. Child support money may technically be paid by one parent to another, but the legal reality is that the money belongs to the child and can only be used to support the child. Also, child support awards must be modified if financial circumstances change. Judges must award the amount of child support that is fair and reasonable under the circumstances, regardless of any prenuptial agreement by the parents.

Similarly, child custody can’t be decided in advance via a prenuptial agreement. This is because child custody awards are decided exclusively by the family law courts, which look at the facts and circumstances of each unique case and render a decision based on the child’s best interests at the time. A judge will give little to no consideration to what the prenuptial agreement says about child custody and support.

On the other hand, the Texas statutes specifically provide that prospective spouses can memorialize a binding agreement about alimony in a prenuptial agreement. Prospective spouses can agree to a set level of alimony, to waive (give up) alimony, to cost of living adjustments, or to any other matter affecting alimony, and the family court will enforce that part of the agreement.

How Can I Ensure my Prenuptial Agreement Is Enforceable in Texas?

Texas has adopted the Uniform Premarital Agreement Act (“UPAA”), which spells out all the elements that the National Conference of Commissioners on Uniform State Laws believes should be present in a legally enforceable prenuptial agreement. For a prenuptial agreement to be legally valid in Texas, all of the following requirements must be satisfied:

  • The agreement has to be in writing - an oral agreement is not legally enforceable.
  • The agreement does not have to be supported by consideration - “consideration” is something of value that one party gives to the other as a show of support for a contract.
  • The agreement must have been written and signed “in contemplation of marriage,” meaning that the parties must have negotiated and signed the agreement with a view toward a definite and upcoming marriage.

Prenuptial agreements are legally unenforceable if any of the following statements are true:

  • One of the spouses didn’t sign the agreement voluntarily.
  • The agreement was “unconscionable,” meaning that it is so grossly unfair that it would be against the interests of justice to enforce it. Whether an agreement is unconscionable is an issue to be decided by a judge as a matter of law. An agreement is unconscionable if any of the following is true:
    • One of the spouses failed to provide the other spouse with a fair and reasonable disclosure of all financial obligations and property owned.
    • One of the spouses did not voluntarily and expressly waive, in writing, any right to said disclosure.
    • One of the spouses did not, or could not reasonably have had, adequate knowledge of the other spouse’s property interests and financial obligations.

Can I Change or Terminate a Prenuptial Agreement After Marriage?

Yes. A married couple can modify or invalidate the initial agreement by entering into a subsequent agreement, in writing, that disavows or alters the prenuptial agreement. Both parties have to agree and the new agreement must be in writing. No consideration is necessary to support the modification or disavowal. Modified prenuptial agreements are known as “postnuptial agreements.”

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