Skip to content
Have you ever heard of a prenuptial agreement? Chances are, your first impression came from TV shows or movies that painted these documents as shady or untrustworthy. In reality, navigating prenuptial agreements is a practical and responsible step many Texas families take every day. Far from being sneaky, these agreements help couples address complex financial matters, protect assets, and provide clarity before marriage—making them a valuable tool for securing a stable future together.
Just because something works for other people, he may say, does not mean it will work well for your family. You may ask yourself if a prenuptial agreement makes sense for you. Also, you may wonder how someone could overturn a prenuptial agreement in the future. You may consider how a prenuptial agreement could help you avoid divorce in the first place. I expect you to ask questions like these if you read a blog post on this subject.
Today’s blog post from the Law Office of Bryan Fagan explains what a prenuptial agreement is, how it protects your family in the future, and how it helps you avoid marriage problems. I will also explain ways courts may find prenuptial agreements invalid and unenforceable so you can avoid these problems in your own life.
What is a prenuptial agreement?
A prenuptial agreement functions as a contract between you and your future spouse. The prenuptial agreement includes terms for how you will divide your community estate in a divorce. You and your spouse cannot know if divorce will happen. Only time will show if your marriage ends in divorce or ends for another reason.
The prenuptial agreement anticipates the possibility of divorce and protects both you and your spouse’s interests if divorce occurs. If you create such an agreement during marriage, it becomes a nuptial agreement or marital property agreement. A prenuptial agreement or premarital property agreement differs only because you complete it before the wedding. If you and your spouse never marry, the document holds no legal value.
Once you marry, the document explains how you will divide your community estate in divorce. Now that I have explained what a prenuptial agreement is and how it differs from a marital property agreement, I will discuss what community property is, how it affects your marriage, and what divorce involves if your marriage does not last.
What is community property, and how does it affect a prenuptial agreement?
Community property defines how Texas law treats assets in divorce. The law presumes everything acquired during marriage belongs to both spouses. This includes houses, cars, and bank accounts. In Texas, it does not matter who paid the mortgage or whose income funded the purchase. The law treats all money earned during marriage as community property. Even if you maintain separate accounts, the law counts all income as part of your shared marital estate.
Many people find this unclear, especially today, when most couples keep separate checking accounts and avoid situations where they share property as couples once did. Even if you worked from the beginning of your marriage to support your family, the law does not treat that money as solely yours. This surprises many people and often shifts how they view the value of a prenuptial agreement.
Texas law also honors separate property. The law defines separate property as anything you or your spouse owned before marriage, along with anything you received during marriage as a gift or inheritance. In divorce cases that go to trial, a family court judge considers the extent of separate property owned by either spouse when dividing community property.
A prenuptial agreement would allow you and your spouse to bypass a division of Community property in the divorce
This agreement plays a clear role during divorce. Divorce has two portions: one covering the division of community property and the other covering issues related to children. By agreeing to a prenuptial agreement beforehand, you and your spouse avoid disputes over community property at the time of divorce. Many couples benefit from this because conflict often prevents them from thinking clearly and rationally about property division during divorce.
You or your spouse attach a copy of your prenuptial agreement to the original petition for divorce when you first file. Doing so allows the family court judge to see that you already settled community property issues in advance. An enforceable prenuptial agreement between you and your spouse can become one of the most valuable contracts you ever sign.
What happens in a divorce when you have to divide up your community property?
There are points in a divorce where the stress levels seem to be the highest, and rationality is hard to overcome. The stage of a divorce where you and your spouse begin to negotiate in earnest on your community property division is one of those times. Many parts of a divorce can be stressful and difficult for you and your spouse. However, dividing up the property that you have worked so hard to acquire and save for during your marriage is a complicated process for most folks in your position.
I encourage people who are entering into marriage with a substantial amount of wealth, property, or even debt to consider the possibility of negotiating a prenuptial agreement before marriage. This is a good idea for multiple reasons, foremost among them that it allows you and your spouse to deal with one another when you are on good terms rather than when you are in bad times. The stress of divorce causes people to act in ways that they do not intend to. Why not remove the possibility of negotiating when you are distracted, upset, or furious at your spouse?
Why discussing finances before marriage strengthens your relationship
Remember that speaking to your fiancé about your finances before your marriage can significantly benefit you both. Many people enter into marriage without a plan to attack their financial problems or plan for the future. I am willing to bet most people reading this blog post do not speak to their significant other daily or even weekly about where you all are going as far as your finances are concerned. This is not strange- it’s normal. My advice: don’t be normal. Discuss these issues before your marriage.
By discussing the financial issues inherent in a prenuptial agreement before you get married, you are doing yourself so much good. Not only are there all of the benefits that we have already discussed in today’s blog post, but you also allow yourself to undergo a form of “pre-marriage counseling.” This is especially beneficial if you and your spouse have never been married before. It can be a transition to coordinate your finances with someone when you chart your financial course. Having twice the income will be a welcome change for most folks, but there may be some details that you have to iron out with your finances before feeling entirely comfortable with the changes brought about by marriage.
How a prenuptial agreement can simplify divorce and reduce conflict
The problems brought about by divorce require you to focus your energy on something highly uncomfortable to most people. How do you divide up the possessions and property that are most dear to you? What about the debts you have incurred from dreaming about a future that will no longer come to be? Debt works out for people only when things go according to plan. Unless your plans included a divorce, the obligations you have taken out are now likely to become a sticking point in your divorce.
Look at the prenuptial agreement as a means to help you avoid discussing intricate matters of finances that could end up delaying your divorce from reaching its conclusion. If you are a parent, you will likely want to focus as much of your attention as possible on your children. By agreeing to a prenuptial agreement, you would be freeing up your time to spend on issues regarding your kids, like child custody, child support, and visitation problems.
How to get a prenuptial agreement started in Texas
If you want a prenuptial agreement drafted with your fiancé, you should first speak to them about the subject. Some people find this simple because they already talk openly about finances, but others struggle because they avoid difficult conversations. Evaluate your situation and prepare yourself to have a conversation that could benefit you. You will not know the outcome until you begin the discussion.
After you discuss the possibility of drafting a prenuptial agreement, you and your fiancé should each speak to attorneys about representing you in negotiations. Some people react with surprise when they hear that both parties need separate attorneys. You may wonder why you and your fiancé cannot collaborate on drafting a prenuptial agreement since you are about to get married.
Your best interests may not always match your fiancé’s, so it’s smart to seek independent guidance. The experienced attorneys at the Law Office of Bryan Fagan can help you draft a solid prenuptial agreement. We offer free consultations six days a week to discuss your situation and walk you through the process. Having your own attorney helps if questions ever come up about enforcing your prenuptial agreement. Before sharing tips on keeping it enforceable, let’s first look at why enforceability matters in a family law case.
Enforceability of the prenuptial agreement and why that is important
All of the preceding information that I provided you regarding the benefits of a prenuptial agreement is undoubtedly important. The potential long-term benefits to your marriage, your ability to communicate with your spouse, and the power of the prenuptial agreement to make a future divorce much easier are all genuine considerations.
Why enforceability is the key to a valid prenuptial agreement
With that said, the most crucial aspect of a prenuptial agreement is that it must be enforceable. Enforceability means that a family court judge could hold you and your spouse to the terms of your prenuptial agreement in the event of a divorce. If the deal is not enforceable, it indeed is not worth the paper printed on. All the work that you did to negotiate the document in the expense that went into it would be for naught.
Therefore, you need to ensure that the negotiation process and the drafting of document R are up to snuff as far as the legal requirements of a prenuptial agreement in Texas are concerned. The best way to ensure that your prenuptial agreement will pass muster with the judge is to have an attorney for yourself and your fiancé. This will ensure that both sides have independent advice based on your specific situation.
Why coercion and child-related terms can invalidate a prenuptial agreement
A common way to have a prenuptial agreement thrown out of court is for one side to argue that they were coerced or manipulated into signing the document. If you received undue pressure from your fiancé to sign a prenuptial agreement, then there may be a case for you to make in this regard. However, simply having an attorney to represent you certainly gives the impression, the strong impression actually, that coercion or undue pressure was not part of this process.
Also, suppose you attempt to negotiate on a subject like child support or anything with children. In that case, those portions of the prenuptial agreement will almost certainly be thrown out and not considered at the time of a divorce. The reason is that the law does not allow you to negotiate ahead of time regarding anything with your children. I think the main reason for this is that you cannot anticipate your children’s needs in the future, especially if you have not even had children yet.
In the end, navigating prenuptial agreements is about more than just signing paperwork—it’s about creating security, transparency, and peace of mind for your future. By understanding their purpose and working with an experienced attorney, couples can protect their interests while strengthening the foundation of their marriage.
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 today’s blog post; please do not 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 an excellent way for you to learn more about the world of Texas family law and how your circumstances may be impacted by the filing of a divorce or child custody case.
Other related articles
- How much can a prenuptial agreement protect you?
- Can Child Custody Be Included in a Prenuptial Agreement?
- Frequently asked questions about prenuptial agreements
- Why getting a prenuptial agreement will protect your assets
- How a prenuptial agreement can make your marriage stronger
- Four reasons why your Texas prenuptial agreement may be invalid
- Evaluating whether you should sign a prenuptial agreement in Texas
- Understanding the benefits of a prenuptial agreement for anyone
- How to Bring up the Topic of Prenuptial Agreements
- Can a prenuptial agreement affect who gets the engagement ring?
