How Does a Prenup Work in Texas?

How Does a Prenup Work in Texas?


Most people don’t enter marriage planning to get divorced, but if you live in a community property state like Texas, there are some financial realities to consider before walking down the aisle. Prenuptial agreements in Texas protect the assets and property of both partners in the event of a divorce. A prenup can also outline the disposal of community property and allocate assets and debts equitably. A family law attorney can help you understand how a prenup works in Texas and the ways this legal arrangement can give you peace of mind.

Understanding Prenuptial Agreements in Texas

A prenuptial agreement is a contract between two as-yet unmarried individuals that details the disposition of property should the couple divorce. The details are worked out before the couple weds, and the contract is signed by both parties. The prenuptial agreement goes into effect once the couple is legally married.

The Texas Uniform Premarital Agreement Act addresses the laws that apply to prenuptial agreements. A premarital agreement typically addresses property division, such as preserving ownership of separate (property each spouse owns before getting married) and determining the manner in which each spouse may use, transfer, or dispose of specific property or assets. This could include decisions about who will own the marital home or how to divide retirement accounts.

A prenup in Texas may also cover:

  • Which spouse has the right to any property acquired during the marriage
  • Which spouse has an obligation to settle any debts acquired in the marriage
  • How to divide property
  • Whether one spouse will be entitled to spousal support (alimony)
  • Any specific buy-sell agreements for shared property or businesses

A premarital agreement can cover how the couple will address finances while married, such as whether there will be joint accounts or joint investments. It may even dictate which spouse is financially responsible for certain expenses (such as individual student loan payments).

Some prenups also have “infidelity clauses,” or stipulations that negate the prenup. For example, if one spouse is unfaithful, they forfeit their right to specific assets.

It’s important to note that establishing child custody and child support are not part of a prenuptial agreement. Child support is intended for the child, so it’s not included in the property division agreement between the couple. In fact, Texas law protects the child’s right to support from being affected by the existence or contents of a prenuptial agreement.

While division of parenting time for children and child support are not part of a Texas prenup, custody of pets can be included in the agreement. Texas law regards pets as property, and as such, their ownership can be assigned in the agreement.

Creating a Prenuptial Agreement in Texas

A prenuptial agreement is a binding contract, so drafting one should be taken with as much seriousness as drafting any other business contract. Texas law dictates that a prenuptial agreement is enforceable if it is in writing, signed by both parties, and created in contemplation of an upcoming marriage. Because this is a legally binding contract, it’s in your best interests to have an experienced family law attorney draft a prenup for you or review any prenup your partner wishes you to sign.

An attorney can determine whether the agreement is in your best interests or create one that protects your separate property from your spouse-to-be.

One partner’s attorney typically drafts the Texas prenup, and then a lawyer representing the other spouse reviews it. If one partner has significantly more assets than the other, then a prenuptial agreement to protect the separate property makes sense. A prenup can be a sensible precaution if one partner has substantial debt while the other is debt-free. The prenup can ensure that only the debtor partner is responsible for settling their debt in the event of a divorce.

Prenups can include the terms under which separate property may be converted to community property, such as selling separate property to purchase a shared home.

Enforcing Prenuptial Agreements in Texas

Like other contracts, prenups in Texas may not be enforceable if the agreement was made under duress or otherwise wasn’t voluntarily signed.

The prenup may be nullified if it is unconscionable. To be unconscionable, any of these conditions must have existed:

  • One party was not afforded a reasonable and fair disclosure of the financial status (property owned or debts owed) of the other
  • One party did not expressly waive, of their own volition, any right to have full financial disclosure from the other
  • One party could not have reasonably had full knowledge of the other’s financial situation

For example, if one partner hides assets from the other partner and doesn’t disclose the assets in the prenup, it could be voided. Likewise, if one party hides serious debt from the other, then the agreement may be invalidated.

However, the partner seeking nullification of the prenup must prove to a judge that they didn’t sign the agreement voluntarily or that they did not know that the other party was hiding debts or assets that should have been included in the agreement. An attorney can help you challenge the validity of a prenup.

Finally, if a marriage is deemed void, then the terms of the prenup may be in question. Texas law notes that any agreement that was to serve as a prenup may only be enforced as is necessary to provide an equitable result for both parties.

Modifying Prenuptial Agreements in Texas

Once the agreement is effective, it may only be revoked or amended by a written agreement signed by both spouses. Any amendment or revocation in writing and signed by both parties would be as enforceable as the original contract.

Choose an Experienced Texas Family Law Attorney to Draft Your Prenup

Do you need more information about how a prenup works in Texas? Do you have questions specific to your financial situation and relationship? Contact Smith Family Law today at (512) 764-1044 for a confidential consultation with an Austin family law attorney experienced in drafting prenuptial agreements.


Written by: Smith Family Law

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