Divorce and Premarital Agreements in Texas

Divorce and Premarital Agreements in Texas

A premarital agreement is an agreement between two individuals who are contemplating marriage and who are wanting to decide certain issues related to their property, income and earnings. The agreement must be in writing and signed by both parties. The premarital agreement become enforceable at the time of marriage and determines the distribution or the property, assets and earnings if the marriage ends in divorce.

What does the Texas premarital agreement do?


• Outlines the rights and obligations of each spouse with regards to their property and assets if the couple eventually files for divorce.
• It determines who has the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property.
• It outlines what happens to the property if the couple separates, the couple files for divorce or one of the spouses dies.
• It may also outline how spousal support may be changed or terminated.

• It may determine how a will or trust may be allocated
• It may determine how life insurance may be allocated
• According to Texas state law, child support obligations may not be adversely affected by the premarital agreement.

Texas state laws allows for the premarital agreement to be modified, in writing, but both parties must agree and sign a written agreement for modification.

Is my Texas premarital agreement enforceable?


If you live in Texas, the Texas family code is very specific about when the Texas prenuptial agreement is not enforceable. According to Texas law, “A premarital agreement is not enforceable if the party against whom enforcement is requested proves the following:
1. the party did not sign the agreement voluntarily; or
2. the agreement was unconscionable when it was signed and, before signing the agreement, that party:

• was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
• did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
• did not have, or reasonably could not have had, adequate knowledge of the property or financial obligations of the other party.

An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law. The remedies and defenses in this section are the exclusive remedies or defenses, including common law remedies or defenses.”

So if you are going through a divorce in Texas and you signed a prenuptial agreement you have two ways to prove that the agreement is not legitimate: the agreement was made without the voluntary consent of one of the parties or the agreement can be proven to be unconscionable.

In the first example you must prove that you did not “voluntarily” agree to the agreement. This would be difficult to prove unless your fiancé coerced you in some manner (force, threats, intimidation, bullying, duress).

If you cannot prove involuntary consent you must prove “unconscionability” (grossly unfair according to society’s social conscious) and that before you signed the agreement you were not given “a fair and reasonable disclosure of the property or financial obligations of the other party.” Additionally, you did not waive your right to the information and you did not have knowledge of the financial obligations of your spouse.

The court is responsible for deciding the issue unconscionability according to law.

Couples who are considering divorce should consult with a divorce lawyer. Divorce attorneys understand Texas divorce law and can ensure that your rights are protected.