Prenuptial agreements (“prenups”) are simply pre-marital contracts that a couple can enter into prior to marriage. They can cover a number of items relevant to an intended marriage, as well as decisions when the marriage ends, either by death or divorce.
Generally, these topics include:
- Division or disposition of assets and property
- Awarding of spousal support
- The rights to buy, sell, and/or transfer property
- An accompanying will and estate plan to accompany the prenup and carry out the provisions
Both parties should engage their own counsel to examine the contract before signing to ensure that both are being treated fairly and equally. Once the attorneys sign off on the prenup, both parties should sign and notarize the prenup at least 30 days before the wedding.
A prenup must be in writing—an oral agreement is not sufficient. The laws surrounding these agreements are found in the Texas Family Code, Chapter 4. However, there are some items that are not valid in a prenup.
Child Custody & Support
Should a couple later decide to divorce, a prenup tells the court how the couple wants to deal with marital assets and property. Without it, the court decides for you.
However, the issue of child support and custody (“conservatorship” in Texas) is not added into a prenuptial agreement. While these issues are usually part of a divorce case, they are handled separately.
Since the prenup deals primarily with the marital relationship of the spouses, child support and conservatorship are handled by the family courts.
It is impossible to determine the best interest of the child ahead of time, and so any mention of future children will be set aside.
The prenup also cannot set a limit on the amount of child support the other parent can receive. That is also decided by the court, using the guidelines set by the state.
An Unconscionable Agreement
A prenup that with a slant to favor one spouse would be considered “unconscionable,” meaning that it was so unfair that a judge would be wrong to enforce it.
Things that would make it “unconscionable” include:
- A prenup that would financially enrich one spouse over the other and leave the other impoverished
- One spouse failed to provide complete disclosure of all assets and owned property, as well as financial obligations
- One spouse did not, in writing, waive the right to this disclosure
- One spouse did not, or could not reasonably have, the complete knowledge of the other spouses’ assets, property, and financial obligations
- Any assets that are deemed to be fraudulent will also lead to a prenup invalidation
It Must Be Understood And Voluntarily Signed
The cliché of a prenup presented to one party right before the wedding will not suffice. That’s why it’s recommended to be signed at least 30 days in advance of the intended wedding, as well as notarized.
Both parties sign the agreement acknowledging that everything is truthful and that both parties understand everything before signing without duress.
Should one party prove that he or she was coerced into signing the prenup, a divorce attorney could challenge the agreement and seek to have it nullified.
Both parties are required to reveal all assets and property in the agreement, some of which can be made “separate property,” removing it from the marital estate, such as a family business. Concealing assets or other illegal actions can quickly invalidate even the best-written prenup.
Attempting to add in clauses that would ultimately require one spouse to do anything illegal will also cause the prenup to be invalidated.
Helping Texans With Prenups And Other Family Law Matters
Wendy L. Hart is an experienced family law attorney with experience assisting people throughout Tarrant County who need help in marriage and family legal matters. From a prenuptial agreement to wills and estate planning, Wendy can help with a wide range of family law issues you may be facing.