Houston, Texas Divorce Lawyer I from time to time get questions regarding
Postnuptial agreements. At the beginning of the year I had several people ask me about whether
or not they should sign
Generally, from a legal standpoint if you are the person who does not have
a lot of property there is not an advantage to signing a
premarital agreement. If you are the spouse who does have property, there is. Some of these
things can be balanced out through negotiations. However, I am going to
save that topic for another post.
I wanted to talk about attacking the enforceability of
prenuptial agreements because in the last 6 months I have received inquiries from prospective
clients on this topic. In one scenario there was a question regarding
premarital agreement signed three days prior to marriage in 2003 and not reaffirmed after the
marriage by a woman who was not represented by an attorney would be valid.
In another scenario there was a question on whether a
premarital agreement would be valid if the party had not received a financial disclosure when
that party who signed it was also currently undergoing chemotherapy.
Texas Law for Agreements Made on or After 9-1-93
In 1993, the Legislature amended the Family Code by eliminating common-law
defenses to the
enforcement of premarital agreements executed on or after September 1, 1993. Thus, for premarital agreements
executed on or after September 1, 1993, involuntary execution and unconscionability
are the only grounds for contesting the enforcement of a premarital agreement.
Tex. Fam. Code §4.006(c). While Family Code §4.006(c) indicates that
involuntary execution and unconscionability are the exclusive defenses to enforcement of a premarital agreement, a
specific term of an agreement (as opposed to the agreement as a whole)
can still be challenged if it is a prohibited contractual term.
premarital agreement is not enforceable if the contestant proves that she did not execute the
agreement voluntarily. Tex. Fam. Code §4.006(a)(1).
Neither the Family Code nor the UPAA defines the term “voluntarily.”
Sheshunoff v. Sheshunoff, 172 S.W.3d 686, 695 (Tex. App. – Austin 2005, pet. denied) (postmarital-agreement case);
Osorno, 76 S.W.3d at 511(premarital-agreement case). Courts have defined “voluntarily”
as an intentional act – as opposed to inadvertent or accidental
– that is the product of the exercise of free will unconstrained
by external interference, force, or influence.
Sheshunoff, 172 S.W.3d at 695 (postmarital-agreement case.
One Texas court of appeals has defined “voluntary” as doing
something “by design or intentionally or purposely or by choice
or of one’s own accord or by the free exercise of the will.”
Prigmore v. Hardware Mut. Ins. Co. of Minn., 225 S.W.2d 897, 899 (Tex. Civ. App. – Amarillo 1949, nowrit).
Thus, according to the Amarillo Court of Appeals, “[a] voluntary
act proceeds from one’s own free will or is done by choice or of
one’s own accord, unconstrained by external interference, force
Id. One who signs a contract is presumed to know its contents.
Emerald Texas, Inc. v. Peel, 920 S.W.2d 398, 402 (Tex. App. – Houston [1st Dist.] 1996, no writ).
In the specific context of a marital agreement, the Houston Fourteenth
Court of Appeals has stated “one is presumed to know the contents
of a document he has signed and has an obligation to protect himself by
reading a document before signing it.”
Marsh v. Marsh, 949 S.W.2d 734, 744 (Tex. App. – Houston [14th Dist.] 1997, no writ).
It seems clear that an agreement signed under “duress” is not
signed voluntarily. In
Matelski v. Matelski, 840 S.W.2d 124, 128 (Tex. App. – Fort Worth 1992, no writ), the Fort
Worth Court of Appeals held that, at the time of trial, the husband had
the burden of proving that his execution of the partition agreement was
not voluntary due to duress.
Evidence of Fraud, Duress & Undue Influence
Texas courts have struggled to determine whether evidence of fraud, duress,
and undue influence can be presented to establish involuntary execution
of a premarital agreement.
This struggle stems from the Family Code amendment that made involuntary
execution and unconscionability the exclusive defenses to a premarital
agreement executed on or after September 1, 1993.
For agreements executed before September 1, 1993, Texas courts allowed
the contestant to establish involuntary execution using evidence of fraud,
duress, and undue influence.
Common law concepts including duress, lack of capacity, fraud, and undue
influence, along with the parties' relative bargaining power and knowledge
regarding the meaning and effect of the agreement could bear upon the
ultimate determination of voluntariness.
Sheshunoff, 172 S.W.3d at 695-696.
premarital agreement is not enforceable if the contestant proves that the agreement was unconscionable
when it was signed and that, before signing the agreement, the contestant:
- 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 the disclosure
of the other party’s property or financial obligations beyond the
disclosure provided, and
did not have and could not reasonably have had an adequate knowledge of
the other party’s property or financial obligations. Tex. Fam. Code
Fazakerly, 996 S.W.2d at 265 & n.4.
Unconscionable at Time of Execution
Whether an agreement was unconscionable when it was signed is a question
of law. Tex. Fam. Code§4.006(b). Neither the Family Code nor Texas
courts have defined the term “unconscionable” in the context
of a premarital agreement.
Marsh, 949 S.W.2d at 739;
see Tex. Fam. Code §4.001 et seq.
To help define the term, courts have looked to the definition of unconscionability
in the commercial context.
Marsh, 949 S.W.2d at 739-40. In the commercial context, an agreement is unconscionable
if, given the parties’ general backgrounds and their particular
needs, the contract is so one-sided that no reasonable person would consider
it an arm’s-length transaction.
In re First Merit Bank, 52 S.W.3d 749, 757 (Tex.2001). The principle underlying the concept of
unconscionability is the prevention of oppression and unfair surprise.
Id. Courts conduct both a procedural and a substantive review of the contract
to determine whether the contract was unconscionable when it was signed.
- Procedural Unconscionability
Procedural unconscionability focuses on the actual making or inducement
of the contract.
In re Rangel, 45 S.W.3d 783, 786 (Tex. App. – Waco 2001, orig. proceeding).
This form of unconscionability addresses how the parties arrived at the
terms of the contract by reviewing the facts surrounding the bargaining
process. Under this form of review, courts look at:
(1) the presence of deception, overreaching, and sharp business practices,
(2) the absence of a viable alternative, and
(3) the relative acumen, knowledge, education, and financial ability of
the parties involved.
- Substantive Unconscionability
Substantive unconscionability focuses on the terms and conditions of the
agreement. Under the Family Code, the terms and conditions of the agreement
must be unconscionable when the agreement was signed for the agreement
to be unenforceable. Tex. Fam. Code §4.006(a)(2).
Texas courts have followed the statutory directive, focusing on the circumstances
when the agreement was signed, not on any resulting disproportionate effect.
Fanning, 828 S.W.2d at 145;
In re Marriage of Smith, 115 S.W.3d at 135(although division of marital property under contract
disproportionately favored one spouse, court reviewed circumstances when
agreement was signed, not whether contract was unconscionable years later).
As a result, an agreement that is simply “unfair” because it
disproportionately favors one party over another is not substantively
- Texas Courts and Unconscionability
Texas courts have addressed the issue of unconscionability on a case-by-case
basis, looking to the entire atmosphere in which the agreement was made.
Pearce v. Pearce, 824 S.W.2d 195, 199 (Tex. App. – El Paso 1991, writ denied).
The simplicity of the statutory language notwithstanding, the determination
of “unconscionability” may be quite complex, and usually involves
a detailed inquiry into the facts and circumstances surrounding a disputed
See Bain, Bruce,
Pre- And Post-Nuptial Agreements, State Bar of Texas 39th Annual Advanced Family Law Course, August, 2013, Chapter 20.
In determining whether a contract is unconscionable or not, the courts
must look to the entire atmosphere in which the agreement was made, the
alternatives, if any, which were available to the parties at the time
of the making of the contract; the nonbargaining ability of one party;
whether the contract is illegal or against public policy; and, whether
the contract is oppressive or unreasonable.
At the same time, a party who knowingly enters a lawful but improvident
contract is not entitled to protection by the courts. In the absence of
any mistake, fraud, or oppression the courts, as such, are not interested
in the wisdom or policy of contracts and agreements voluntarily entered
into between parties compos mentis and
Marsh, 949 S.W.2d at 740,
citing, Wade v. Austin, 524 S.W.2d 79, 86 (Tex. Civ. App. – Texarkana 1975, no writ).
ISSUE #1 - Whether the close Proximity of the Execution of a Premarital
agreement to the time of Wedding alone makes the agreement unconscionable?
Williams v. Williams, 720 S.W.2d 246, 248-249 (Tex. App. – Houston [14th Dist.] 1986, no writ)
HOLDING: According to the Houston appellate court, the fact that the premarital
agreement was signed shortly before the wedding (one day) did not make
the agreement unconscionable. The Court held that an agreement signed
on the day of marriage was not procured through fraud, duress or overreaching
because the wife had substantial business experience and the husband testified
they had discussed the agreement’s terms six months before the wedding.
ISSUE #2 – Whether the lack of Legal Representation prior to the
Execution Premarital Agreement alone makes the agreement unconscionable?
Marsh, 949 S.W.2d at 741-743, Citing
Pearce v. Pearce, 824 S.W.2d 195, 199 (Tex. App. – El Paso 1991, writ denied)
HOLDING: Likewise, the fact that the husband was not represented by independent
counsel was not dispositive. The Court held that although the wife testified
she was not represented by counsel and did not read or understand the
agreement, she encouraged her daughter-in-law to sign a similar agreement
against the advice of her daughter-in-law’s attorney). Moreover.
ISSUE #3 – Whether the unfairness of a Premarital Agreement alone
makes it unconscionable?
Chiles v. Chiles, 779 S.W.2d 127, 129 (Tex. App. – Houston [14thDist.] 1989, writ denied)
HOLDING: The Houston Court of Appeals also refused to accept the husband’s
assertion that the one-sided nature of the agreement strongly preponderated
toward a finding of unconscionability.
Id. Even though a premarital agreement may be disproportionate, the appellate
court stated, unfairness is not material to the enforceability of the
ISSUE #4 – Whether the inadequate disclosure of property and debts
prior to signing of a Premarital Agreement is alone enough to make the
Marsh v. Marsh, 949 S.W.2d 734, 743 (Tex. App. – Houston [14th Dist.] 1997, no writ).
HOLDING – No it is not. If the trial court determines that a premarital agreement
is unconscionable, the party resisting enforcement must also prove that,
before signing the agreement, that party was not provided a fair and reasonable
disclosure of the property or financial obligations of the other party.
Tex. Fam. Code §4.006(a)(2)(A). In other words, disclosure forms
the second prong of the test to rebut the presumption of enforceability,
and a lack of disclosure is material only if the premarital agreement
has been determined to be unconscionable.
ISSUE #5 - Whether a waiver of disclosure can replace a financial disclosure?
- Yes and no.
Tex. Fam. Code §4.006(a)(2)(B) - Under the express language of the
statute, disclosure must be waived in writing
before the marital agreement is signed. Accordingly, the statute apparently requires two separate written instruments,
signed by both spouses, i.e., a waiver and an agreement.
ISSUE #6 Whether a premarital agreement when signed 14 hours’ prior
marriage was involuntary
Moore v. Moore, 383 S.W.3d 190, 193 (Tex. App. 2012)
- FACTS: At trial, Caroline presented evidence that before she married Gary,
he misrepresented his financial condition and claimed he wanted her to
sign a premarital agreement to protect her from “loans, liens, and
lawsuits.” Gary first attempted to use his own lawyer to assist
them to write the agreement in a “collaborative effort.” When
he realized this could subject the agreement to attack, he suggested she
retain a lawyer at his expense. Gary, however, rejected the lawyers Caroline
requested and directed her to a lawyer of his own choice. He then made
it effectively impossible for Caroline's lawyer to review the final
draft by misrepresenting to her that he did not have the agreement when
they went to Martha's Vineyard and then hiding the agreement for several
days until just hours before their wedding. The draft Caroline was presented
at that time was the first version of the document that did not contemplate
a value of Gary's estate being provided. The document also required
her to verify Gary had given her full disclosure of the nature, extent,
and value of his assets. Gary also requested Caroline to sign a document
waiving further disclosure. Caroline panicked, tried to call her lawyer,
and could not reach him. Gary then told Caroline that Hunt had approved
the agreement and told her it was okay for her to sign.
HOLDING: There is legally and factually sufficient evidence to support the trial
court's involuntariness finding.
Premarital Agreement Reaffirmation
Some attorneys ask that the parties include a “reaffirmation clause”
in the premarital agreement requiring the parties to “reaffirm”
the agreement after the marriage ceremony. Problems with this can occur
if the if the reaffirmation is not mentioned in the
premarital agreement and that many parties do not sign the “reaffirmation clause”
after they are married.
There is no Texas Case Law holding a premarital agreement could be invalidated
for failure to execute a reaffirmation clause after marriage. If such
a clause were included in a premarital agreement and then “reaffirmation
clause” was not signed in might make for a good argument to invalidate
The above cases make it clear that it will take it is an uphill battle
to challenge a
premarital agreement. The law also places the burden on the party challenging the premarital
agreement to show why that agreement should not be upheld. In
Williams v. Williams signing an agreement one day prior to marriage was not enough. Therefore,
in a situation of having signed a premarital agreement only three days
prior to her marriage would probably not be enough to invalidate the agreement.
From my research so far I have not located case law where courts have considered
premarital agreements and the health of the signer. However, in a situation
where someone was undergoing chemotherapy around the time they signed the
premarital agreement would be a relevant fact issue when combined with the timing of the signing
of the agreement could be enough to change the outcome.
If in addition to these things the
premarital agreement made reference to a financial disclosure and schedules being attached
to agreement however account balances were not listed in those schedules.
I believe the question could be raised on where there was a fair and reasonable
disclosure. A waiver of disclosure can be made however that waiver must
be signed prior to the signing of the premarital agreement.
Marsh not having an attorney was not enough to find a premarital agreement invalid
when combined with the other facts in a person situation I believe it
would lend weight to invalidating the agreement. What I often tell people
a lot of times building a case is similar to building a wall. One brick
will not necessarily give you a wall. However, if you get enough bricks
then you will have a wall.
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