Challenging a Prenup or Postnup Agreement

Negotiating a prenuptial agreement can be a great advantage for many couples as they enter into a period directly before they got married. If you find yourself engaged and preparing for marriage, then I believe that you should also consider the possibility that a pre-natural agreement could be helpful for not only your present but also your future. Many people get the wrong idea about prenuptial agreements based on their assumptions or from stories told to them by friends and family.

The trouble with listening to what other people tell you about something as complex as pre-marriage planning is that the circumstances of your life play such a significant role that it would be difficult to speculate how much another person’s situation could inform The OR decision making. Otherwise, what you are doing is relying upon another person’s perspective who may not even be able to understand what you and your family are going through fully. The benefit of you getting a premarital agreement may be much more significant than a friend or family member who is speaking to you about the subject.

With that said, I think that there are certainly benefits to your being able to negotiate a premarital agreement, especially when you have a significant amount of separate property to your name, have a very high income, or if you and your fiancé are in many different positions financially. For example, if you already have a great deal of wealth to your name in your fiancé does not, you may want to establish in the premarital agreement what property will belong in your separate estate and that of your spouse to be. All the property could then be classified as Community property.

This will be helpful because a great deal of your divorce will be spent not only defining what is separate and what is Community property but determining how to divide the Community property. Being able to make decisions on a subject like this with your Co-parent before a contentious and difficult divorce would seem to be a great step forward for most who are going through the decision-making process about a premarital agreement. Why not remove a contentious subject in divorce and work on deciding how to handle it when you and your spouse are on good terms.

You can almost think about a pre-marital property agreement as being like a will. A will helps you and your family to be able to sort out your wishes ahead of time so that at the time of your death, beneficiaries are established, and the executor of your will knows how to move forward as far as distributing property and paying creditors. A will does not increase the likelihood of your death any more than negotiating a premarital property agreement increases the likelihood of your getting a divorce. Rather, a pre-marital property agreement helps 2 laid the groundwork for a marriage that will hopefully be free from dispute an argument over the difficult subject matter.

Remember, a pre-marital property agreement has no legal effect until you endure the spouse’s divorce proceedings. That means that you or your spouse cannot hold the document over the other one’s head as far as having any legal importance. On the contrary, it is merely a piece of paper but the words written on it until a divorce case begins. With that said, however, you do want to make sure that the document is enforceable and is valid. As with any legal document, there are limitations to what the document can contain, and there are ways to invalidate a pre-marital property agreement.

The last thing you want to do is to go through negotiating a pre-marital property agreement only to find that the document is declared invalid. Overall, I think that there are ways to ensure that your pre-marital property agreement is declared valid by a judge and held to be enforceable. If you have an unenforceable premarital property agreement, then the document will not be worth the paper printed on even as you begin divorce proceedings. Anytime, money or expense otherwise spent on creating the document will have been for not.

Consider hiring an attorney before negotiating a premarital property agreement.

The best advice that I can give you when negotiating a pre-marital property agreement is to hire an attorney before beginning that process. I understand that this is very general advice, but I think it is the best advice I can provide you with. The fact is that having an attorney guide you through this process will do more to assist you in your family, but anything else when you have an attorney representing you that it is presumed that you have been given objective advice about a whole host of subjects related to premarital property agreements. Therefore, it is difficult to argue that you were ill-advised or unaware of a particular circumstance when the girl was shooting the document.

In today’s blog post from the Law Office of Bryan Fagan, we will talk about potential arguments that can be made when challenging the validity of a prenuptial or postnuptial agreement. I think that you will find that the legitimacy of any arguments challenging the validity of a prenuptial or postnuptial agreement will be significantly lessened if each of you has separate attorneys. Note that I say separate because even though you endure, you got say will be getting married; indeed, your interests when negotiating a prenuptial agreement are not the same.

You are coming from different backgrounds and different perspectives on your case. Therefore, since you are not negotiating from the same positions, it would make sense for each of you to have an attorney representing you. Otherwise, the advice given to you for your case may not be good advice for your fiancé and vice versa. You should hire your attorney to help you negotiate from your circumstances as best you can. If your fiancé does the same from their perspective, then you will be in good shape to have your prenuptial or postnuptial agreement honored by a divorce court in the future.

What are the main ways to argue against the validity of a prenuptial or postnuptial agreement?

Arguing against the validity of a prenuptial or postnuptial agreement boils down to invalidate the document as you would a contract. The only difference is that a prenuptial or postnuptial agreement deals in matters that are close to your heart and based more on relationships than they are in anything business-related. As a result, objective and subjective matters, as well as emotions, come into play. They can cause a great deal of consternation if you are not careful in how the document is negotiated and drafted.


The most common way a prenuptial or postnuptial agreement could be invalidated is if the agreement is declared fraudulent by a court. For instance, if you or your fiancé negotiated in bad faith for the prenuptial or postnuptial agreement, then this would be a fairly obvious way that your document could be declared to be invalid. You must both disclose all of your assets, liabilities, and other circumstances to each side before beginning the negotiation process. This means that if you do not tell your spouse to be about all of your relevant circumstances, then they could come back and argue that without having a full idea of what your circumstances were, they would have been more likely to change their mind or not move forward with signing the document.

In a child custody or divorce case, parties to one of these matters typically exchange discovery requests and responses in the hopes of making sure the other side is aware of the positions they are taking in their case, the assumptions they are making, and their understanding of the facts. While no formal legal matter will have been filed before you’re drafting a prenuptial or postnuptial agreement, it may be worthwhile for you and your spouse or fiancé to agree on sharing similar documents and responses before negotiating a prenuptial or postnuptial agreement. This is all the more reason to hire an attorney.


A hallmark of any contract in our country is that the agreement was signed willingly by both parties. This means that both sides had equal access to the information that formed the basis of the contract and that each party was motivated to sign the document based on their free will and the idea that they would each be able to gain something from agreeing. Anything less, and the validity of the agreement comes into question. This is what happens when you and your fiancé sign a prenuptial or postnuptial agreement where it is questionable as to whether both of you are freer from duress in doing so.

For instance, if it can be shown that you and your fiancé we’re not both equally on board when it came to signing the document, then you may be in a position where one of you can question the validity of the negotiation and signing process later on. However, from my experience, it can be difficult to prove duress. While circumstantial evidence may exist to prove duress, direct evidence of dress is very difficult to come by. However, if you are concerned about proving that duress did occur in your lives, then you may want to hire an attorney.

I recommend hiring an attorney before negotiating on a postnuptial or prenuptial agreement because by hiring a lawyer, you remove a great deal of opportunity for your spouse to argue later that the agreement was signed under duress. The reason being is that with an attorney, you theoretically have more of an opportunity to ask questions and have more information and knowledge that you are not going to be forced into signing an agreement that is not in your best interest. Hiring an attorney in and of itself does not completely make the address argument invalid, but it puts you a lot closer to that position.

Reduced mental capacity

This is a similar argument as you may find when trying to declare a marriage null and void. For instance, if you got married while intoxicated, on the effects of alcohol or drugs, or otherwise not of sound mind, you can attempt to quickly remedy that situation by requesting an annulment rather than a divorce. There is a similar proposition when it comes to challenging a prenuptial agreement or postnuptial agreement. If you believe that you were under the influence of drugs, alcohol, or otherwise unable to be of sound mind during the negotiation process, then you may be able to present this as a reason to declare the contract invalid.

When it comes to trying to prove to reduce mental capacity, you may need to be able to present evidence of your being under doctor’s care at the time of your negotiation. Prescription medication, inpatient medical care, and other documentary proof like this would seem to be important when attempting to prove that you had reduced mental capacity when agreeing. Agreeing to things out of the ordinary or not in line with your circumstances would also seem circumstantial evidence of a reduced mental capacity.

Closing thoughts on challenging a prenuptial or postnuptial agreement

The bottom line is that if you attempt to declare invalid a postnuptial or prenuptial agreement, then the burden is on you. It is not presumed that any of the allegations you are making regarding the agreement’s validity are true. Rather, the burden is on you to be able to prove that one of these conditions was in place, declaring your agreement invalid. This can be a difficult task for most people and requires some forethought into the situation before a judge would ever consider agreeing with you.

I cannot emphasize enough how important it is for you to have an attorney if your position is that do you want to do everything you can to maintain the enforceability of your agreement. Having an attorney is probably the most direct way to maintain an agreement once your case has come to a close. Well, no setup circumstances will guarantee that your agreement is valid. There are many protections against it having your agreement be declared invalid by simply hiring a lawyer.

Keep in mind that by hiring an attorney, you are not increasing the likelihood of getting a divorce, going to court, or anything else. Put, having an attorney represents you in negotiating a prenuptial or postnuptial agreement; you are helping yourself make sure that your prenuptial or postnuptial agreement contains everything you want to and the language will be determined to be enforceable. Leaving something out of a postnuptial or prenuptial agreement or including language that voids the entire document is not difficult to do.

The first Step 2 hiring a lawyer when negotiating a prenuptial or postnuptial agreement, is to interview multiple attorneys. Family law attorneys understand the nature of both prenuptial agreements and divorce. So, I recommend hiring one of these lawyers after conducting a vigorous search and interview process. Doing so does not have to belong, but you should interview more than one attorney before deciding who to hire.

Deciding who to hire to represent you should send her around that attorney’s experience and their willingness to work with you beforehand. It would help if you asked the attorney how much experience they have in representing clients during the negotiation phase of a prenuptial or postnuptial agreement. In contrast, there is nothing wrong with helping someone get a start in their field; I would not recommend doing so when it comes to an important matter like this.

Put, by hiring an experienced family law attorney to represent you negotiating a document like this, you put yourself in a favorable position when it comes to not only drafting a good prenuptial or postnuptial agreement but having it stand the test of time and be enforceable. Hopefully, by discussing the issues you did in your negotiation, you are better able to anticipate hardships in your marriage and have an opportunity to discuss them before they become full-blown problems.

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in this blog post, don’t hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultation six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law and how your family circumstances may be impacted by the filing of a divorce or child custody case.

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