Prenuptial Agreements in Texas

Learn more about prenuptial agreements in Texas.

By , Attorney (Cooley Law School)
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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 ("prenup" for short) is a contract between prospective spouses made in contemplation of marriage. Generally speaking, prenups control the division of property, such as land, buildings, retirement accounts, and automobiles.

Couples must finalize a prenuptial agreement before getting married. They become effective as soon as the parties are legally married. Prenuptial agreements are also known as premarital or antenuptial agreements in some jurisdictions.

Who Should Get a Prenuptial Agreement?

If any of the following scenarios apply, couples may want to consider getting a prenuptial agreement:

  • either spouse brings significant debt into the marriage
  • one or both spouses plan to bring 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 in Texas?

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 personal or real 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 arrangements 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 separation or divorce. The right to child support belongs to the child, not the parent.

The law may require one parent to pay child support to the other, 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, parents can't determine child custody in advance via a prenuptial agreement. Family law courts exclusively decide child custody and judges primarily 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 a prenup 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 support, 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, it must meet all of the following requirements:

  • the agreement has to be in writing: an oral contract is not legally enforceable
  • the prenup does not have to be supported by "consideration," which is something of value that one party gives to the other as a show of support for a contract
  • the parties must have executed the agreement "in contemplation of marriage," meaning that the parties must have negotiated and signed the prenup 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 is "unconscionable," meaning that it is so grossly unfair that it would be against the interests of justice to enforce it. Whether a prenup is unconscionable is an issue that a judge will decide 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 prenup. Both parties have to agree, and the new agreement must be in writing. No consideration is necessary to support the modification or disavowal. These modified prenuptial agreements are referred to as "postnuptial agreements."

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