If your marriage is heading for divorce, you’re probably trying to get your financial ducks in a row. Suddenly, the prenuptial agreement you thought you’d never have to use is a big factor in your community property division. If you’re like many people, you’re probably asking your Texas family law attorney, “Are prenups valid in Texas?”
A properly drafted and executed prenuptial agreement, signed by both parties, is usually enforceable in Texas. Texas law outlines what makes the agreement valid and the conditions under which it may be unenforceable. Before you toss your premarital contract out the window, though, it’s important to seek legal advice about your options.
Is My Prenup Valid in Texas?
Prenuptial agreements in Texas are governed by the statutes in the Uniform Premarital Agreement Act. This Texas law addresses certain situations in which a prenuptial agreement may be invalid:
- One spouse failed to disclose property or assets they owned or debts they owed; the other spouse could not have reasonably known about the debts or assets, and therefore, the agreement was unconscionable.
- One spouse did not sign the agreement voluntarily.
- The marriage is void, and therefore, the agreement may not be enforceable (only to the point to which the outcome isn’t inequitable).
Usually, the spouse contesting the agreement’s validity must prove in Texas court that they signed under duress, the marriage was void, or that they could not have reasonably known their future spouse’s full financial situation before signing the agreement.
Benefits of Having a Prenup in Texas
Prenuptial agreements are legal contracts entered into before marriage that address the division of property and debts in the event of a divorce.
Community property is that which the couple acquires during the marriage. It’s typically divided equitably in a divorce. Separate property is the property each person owns before the marriage in their name alone. Separate property usually includes things each spouse owned, acquired, or was gifted before getting married, like:
- A house or vacation home
- A business
- Retirement investments
- An inheritance, like a trust or other assets
- Jewelry, a gun collection, or fine art
- A personal injury settlement awarded to one spouse before marriage
A prenup prevents one spouse from claiming a share of the other’s separate property, as that contract establishes sole ownership of the separate property and assets.
Prenups also protect one spouse from having to pay the other’s debt. For example, if one spouse took out student loans, a personal loan, or ran up credit card debt before getting married, then the prenup can assign full responsibility for settling those debts to the spouse who acquired them.
Texas Prenuptial Agreement Laws
Texas prenup laws set forth elements of a prenuptial agreement and conditions under which it’s valid. Agreements must be in writing, voluntarily signed by both parties, and made with the expectation that they will marry. The contract may include:
- Any obligation regarding or right to property
- Any right to buy, sell, transfer, lease, assign, encumber, dispose of, or otherwise exchange property or assets (the agreement may specify who has rights to which assets)
- How property is divided upon divorce
- Establishing, modifying, or eliminating spousal support (alimony)
- The right of one party to create a will, trust, or other estate planning document to carry out the terms of the prenup
- Allocation of property or assets to children from a prior marriage
- Any rights to or ownership of life insurance benefits
It may also address other matters, like changing one party’s name on divorce, or include a stipulation rendering the agreement invalid if one spouse commits adultery.
Common Misconceptions About Prenups in Texas
Perhaps the biggest misconception that couples have about Texas prenuptial agreements is that they can include provisions for child custody or child support. Assignment of child support is independent of any prenuptial agreement and will not be affected by the presence of the prenup, according to Texas law.
Some other common misconceptions that couples have about a prenup include:
- You can include visitation arrangements for your pet. You can’t include pet visitation in the prenup, but since Texas considers pets as property, you can assign the pet’s ownership to one person, just as you would other property.
- You have to sign the prenuptial agreement more than X days before the wedding. In fact, there is no waiting period – you can sign it as you’re walking down the aisle.
- The prenup must be fair. In fact, a prenup may contain a significantly uneven distribution of assets, especially if one spouse is entering the marriage in a much stronger financial position than the other. Prenups let you keep what was yours before marriage.
- Prenups only divide property. False. A prenup may actually contain a clause to convert separate property to community property.
- A prenup means that you think the marriage will end in divorce. In truth, it could be argued that a prenup may make the marriage last longer because it’s based on full disclosure and open communication from the start.
How Long is a Prenup Valid in Texas?
A prenup doesn’t expire unless an explicit “expiration date” is written into the contract. The prenup may continue for the duration of the marriage or may be in place for a set term, such as 10, 15, or 20 years.
Can a Valid Prenuptial Agreement Be Challenged in Texas?
Yes, a prenup may be challenged on the grounds that the marriage is void, that the agreement was unconscionable (or one party misrepresented their financial situation), or that one party did not sign the agreement voluntarily.
However, the spouse challenging the prenup’s validity on the grounds that one party didn’t disclose assets may have to prove that they didn’t sign a waiver permitting the other party not to disclose everything.
How Can a Prenuptial Lawyer Help Me Ensure My Prenup Is Enforceable in Texas?
Do you need help learning more about your options for a prenuptial agreement? Contact Smith Family Law for a confidential consultation with a skilled Texas family law attorney in our office. You can call 512-764-1044 or fill out our online scheduling form.