When going through the effort of having a prenuptial agreement drafted, one of the things that you and your fiancé probably focused a great deal of attention on was making sure that the contract was valid and enforceable. This means that once you got married and needed to get a divorce, the agreement would stand up in court. A judge wouldn’t tell you that some wording or some circumstance made the agreement invalid and unenforceable. All the work you did to draft the order would have been for not. The contract would be worth less than the paper printed on.
The good news for you and your spouse is that divorce courts in Texas are hesitant not to enforce a prenuptial agreement. The general presumption is that the prenuptial agreement you have drafted is valid and should be enforceable absent something out of the ordinary or something evident to the judge. If you and your fiancé both had lawyers, had time to think about what you were doing, and didn’t insert any language in the agreement, that is a significant no-no (like contracting for future child support over children not yet born), the court will probably honor your agreement.
You can get into some issues if it looks like either you or your spouse did not voluntarily agree to the terms of the agreements or if something contained in the contract is unconscionable. If you want to go to the Texas Family Code and look up their definition of “voluntary,” you will be out of luck. The Code does not define voluntary- just like it doesn’t specify many things that it expects a family court judge to rule on. That means that a judge will look to your specific circumstances that surrounded the signing of the prenuptial agreement as well as the judge’s understanding of the law and will make a judgment based on those factors.
What will a court consider when it comes to determining voluntariness?
Fortunately, there are some factors that a court would utilize in this type of situation. A prenuptial agreement is treated a lot like a contract between two people in the business world. Having the advice of an attorney is especially important when it comes to proving that you voluntarily entered an agreement. When both you and your spouse had lawyers by your side during the negotiation process, it is more difficult to argue that you didn’t know what you were getting into or that you were forced to sign on the dotted line. This is due, in part, to the fact that an attorney would likely be in your ear the entire time to tell you that you can walk away from negotiations at any time and that you should not sign a prenuptial agreement you disagree with.
Another issue that a family court judge would look to determine the voluntary nature of your prenuptial agreement is whether or not there were any misrepresentations made on either your part or that of your spouse. Did your spouse exaggerate, minimize, or outright lie about something important during the negotiation process? The amount of debt your spouse has, the nature of a particular disability you have, or something of this sort. Suppose you lied or were purposefully deceitful about an important area of negotiations, and that led directly to your spouse signing on the dotted line. In that case, this may render the voluntary aspect of the agreement in serious doubt.
Coercion and fraud are both significant problems when negotiating and ultimately signing a contract of any kind. If you were rushed into signing the agreement, this brings into question whether the deal is voluntary. If your spouse’s lawyer told you that unless you signed the deal in the next fifteen minutes, you would never be able to bring up the subject again, that would seem that the deal was rushed. Fraud is a material (significant) misrepresentation that foreseeably led to your signing the contract. But for that misrepresentation, you probably would not have signed.
A hypothetical example to illustrate these points about voluntariness in a prenuptial agreement
Let’s suppose that you and your spouse determined that you all should have a prenuptial agreement. The day before your wedding, you get to work on drafting, negotiating, and ultimately signing the prenuptial agreement. Both of you had issues with the idea of having to divide up community property in the event of a divorce. Therefore, the central thrust of the agreement was that your separate property would be laid out in the prenup and that community property could not be acquired during the marriage. Right down to the silverware, the two of you would be very clear with each other about what property you purchased during the marriage belonged to the separate estate of one or the other.
You all got married and stayed married for about a decade. After ten years of marriage, you filed for divorce in Harris County. However, you challenged the voluntary nature of the prenuptial agreement. You argue that you did not voluntarily sign the contract. Your husband begs to differ. The divorce, he says, is governed by the prenuptial agreement. Any argument you tried to make about the community estate was null and void since there was no community estate per your prenuptial agreement.
Details surrounding how, when, and why you signed the prenuptial agreement
This is where we can get into the real nitty-gritty about our hypothetical example regarding you, your spouse, and a prenup. You argued in court that you had not been threatened or outright coerced into signing the agreement. Additionally, you admitted to being represented by an attorney. You understood the whole deal and what you agreed to. Finally, you do not argue that your husband told you all about his finances, assets, and debts. So, what’s the problem? How could you say that you did not sign the agreement voluntarily?
A threat to perform an act that your husband did not have the legal right to do is the basis for a duress finding in a situation like this. Your husband would have had to have four she to do something, such as the sign of prenuptial agreement, that he otherwise would not have been able to do absent force. Maybe it is true that you and your husband did not have a legal duty to marry one another. Nor did you have a legal responsibility to sign the prenuptial agreement. Either of you could have walked away from the deal in the marriage itself. You would need to provide evidence that your husband had extorted you or made improper demands to substantiate the finding in this situation.
An important point to make is that if you and your spouse were both represented by attorneys during the negotiation of a prenuptial agreement, it is tough to prove duress or fraud. How are you doing? Having an attorney is nearly proof positive of the validity and enforceability of a contract or prenuptial agreement. You want it is it. In this situation, the best that you could do would be to argue that your attorney offered you ineffective assistance. Even in that scenario, we are talking about a problem where you had to say that your attorney did not live up to their end of the bargain. This, also, can be challenging to prove and requires you to prove two cases in one essentially.
What exactly does this apathetically example tell you about how prenuptial agreements are honored? I think it importantly shows that if you show that your spouse refuses to marry you unless you sign a prenuptial agreement, that alone is not enough to prove duress. Feeling so worried that your fiancé will not marry you unless you sign the prenuptial agreement is not enough to show that you were forced into signing it. Again, nothing obligates either of you to either sign that agreement or get married in the first place. Instead, your husband in this situation would have had to have threatened to do something that they otherwise would not have the legal right to do To get you to sign the prenuptial agreement.
What must be in a Texas premarital agreement?
A handful of items must be included in a Texas prenuptial agreement to count as valid and enforceable. I wanted us to discuss this topic today because this is a subject that we have received a lot of questions and inquiries about over the past few years. Whereas previously, I thought that prenuptial agreements had a stigma surrounding them, now we are in a place where prenuptial agreements are no longer taboo. It used to be that only rich people got prenups. Many more people realize that getting a prenup is not bad. If you are one of those people, then you will want to pay incredibly close attention to the rest of today’s blog post.
It is not enough to merely jot down your thoughts and desires for a post-marriage life and call that a prenuptial agreement. The state of Texas has specific requirements for prenups in our form. If you and your spouse did not follow these requirements, then you are at risk of having your prenuptial agreement not honored by a family court judge in the future. Fortunately, these requirements are straightforward and not overly burdensome. The trick is simply knowing what they are so that you can move forward confidently.
For starters, both you and your spouse need to sign the agreement. This is true both for prenuptial agreements and marital property agreements. An oral prenup is not valid or enforceable. You must put your thoughts and plan into writing and sign the document. The significant difference between a prenuptial agreement and a typical contract is that consideration is not required for a premarital agreement to be valid. Review is where you give something (and receive something), and your spouse provides something (And receives something) as a result of signing the agreement. A prenuptial agreement can be much more one-sided, therefore.
As discussed today, the agreement must be free of fraud or coercion. Duress is being made, coerced, or forced into signing the contract based on considerations related to time. If your spouse is telling you that the agreement is only on the table for the next fifteen minutes and that it will be taken away if you don’t sign, that is an example of coercion. It was made to rush through the review and negotiation process to get something signed off. This is coercion.
Fraud is lying about some important part of the agreement to get your spouse to sign when they otherwise wouldn’t do so. Telling your spouse that you have a net worth of $30,000 at the time of signing when you have a net worth of $30 million means that you withheld crucial information that probably would have caused your spouse to reconsider signing, consider changing specific language, or starting over with negotiations. Covering up this critical information likely would render your prenuptial agreement invalid and unenforceable.
Importantly, you cannot negotiate for an unconscionable agreement. This is an extreme situation where the deal is so burdensome for you and so beneficial for your spouse as to be against the public policy of the state of Texas. There is a difference between there being no need for consideration and something that creates excessive burdens for your spouse or you in signing.
Additionally, you need to start the process much like a divorce- with a clear-cut layout of your financial situation. In a divorce, you would call this an inventory and appraisement. You would document all your property and debt on a spreadsheet. Next, you would take those items and determine their approximate value. The purpose of doing this is to provide the judge and your spouse with an idea of the property and debts that you are aware of. Then, the judge could decide spousal support, household bills during the divorce, and things of this nature.
It makes sense to me to do something similar in a prenuptial situation. Why not take this same practice and apply it to your problem? Have a condition of your signing the prenup an exchange of this inventory/appraisement form. That way, you and your spouse-to-be can ensure that you have performed some due diligence by asking for this information. It’s not like discovery is part of the prenuptial agreement process. Instead, you can take the time to ask for this information from your fiancé, so you know what they have going on. You don’t have to take their word for it. If you do this, it is less likely your spouse (or you) will be able to successfully argue in the future that you entered into the agreement based on fraud or coercion.
What can be included in a prenuptial agreement?
If you are curious about prenuptial agreements but don’t know precisely what they may include, then this is some information for you. The main issue determined within a prenuptial agreement is how property is divided at the time of your divorce. Rather than haggle on these subjects while your divorce is ongoing, you can make these determinations ahead of time in a prenuptial agreement. Free of hate and stress, you can think more clearly and decisively. Divorce is stressful. Pressure doesn’t necessarily allow for the best critical thought.
Spousal support is not a given in a divorce. That is often something that you and your spouse will need to negotiate for on your own. It is called contractual alimony if the two of you deal with this outside of the courtroom. If you or your spouse is concerned about this subject in a divorce, you can include it within your premarital agreement. Duration, amount, and frequency of payments are good places for you to begin.
Child support and child custody are items that are not covered by prenuptial agreements. You cannot anticipate the needs of children- even if they are already born. Contracting for these issues ahead of time cannot be approved by a judge or enforced by a subsequent family court judge. Whatever your situation, it is wise to discuss this subject with an experienced family law attorney before committing one way or another. As you can see, there are many moving pieces to consider, and you want advice that can guide you now and protect you in the future.
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 consultations six days a week in person, over the phone, and via video. These consultations are a great way to learn more about the world of Texas family law and how your family’s circumstances may be impacted by the filing of a divorce or child custody case.
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Bryan Fagan, a native of Atascocita, Texas, is a dedicated family law attorney inspired by John Grisham’s “The Pelican Brief.” He is the first lawyer in his family, which includes two adopted brothers. Bryan’s commitment to family is personal and professional; he cared for his grandmother with Alzheimer’s while completing his degree and attended the South Texas College of Law at night.
Married with three children, Bryan’s personal experiences enrich his understanding of family dynamics, which is central to his legal practice. He specializes in family law, offering innovative and efficient legal services. A certified member of the College of the State Bar of Texas, Bryan is part of an elite group of legal professionals committed to ongoing education and high-level expertise.
His legal practice covers divorce, custody disputes, property disputes, adoption, paternity, and mediation. Bryan is also experienced in drafting marital property agreements. He leads a team dedicated to complex family law cases and protecting families from false CPS allegations.
Based in Houston, Bryan is active in the Houston Family Law Sector of the Houston Bar Association and various family law groups in Texas. His deep understanding of family values and his professional dedication make him a compassionate advocate for families navigating Texas family law.
