Does the Existence of a Common Law Marriage Void a Premarital Agreement?

For couples contemplating marriage, particularly those in states recognizing common law marriage like Texas, understanding the role of a prenuptial agreement, or prenup, is crucial. This legal document outlines how assets and liabilities will be divided in the event of a divorce. It also addresses spousal support and other financial matters.

In this article, we explore the significance of a common law marriage prenup. We will discuss its benefits and how it can provide clarity and protection for both parties entering into such unions under Texas law.

Premarital Agreements: A Practical Tool Beyond Celebrity Marriages

Prenuptial agreements are not just for the rich and famous. Prenuptial agreements have been recognized by Texas family law courts for over forty years. As long as there is no evidence that the agreement was entered into fraudulently, it is enforceable. Additionally, if you were not coerced into signing the document, it remains valid. The beauty of a premarital agreement is that you and your fiancé can draft and sign it without needing to go to court or file a legal case. Rather, all you need to do is to have a plan to create and sign a premarital agreement. From there, you can sign the document with your fiancé and move on with your lives. The agreement only becomes relevant if a divorce is filed.

If you and the person that you are going to marry want to create a premarital agreement you can do so and can include whatever you would like in the agreement so long as it has to do with property. You cannot tie one another down to specifics regarding your children- regardless of whether they are born or not. This has a lot to do with a court needing to make decisions that are in the best interests of a child.

You can’t anticipate the needs of future children very well (or at all) so the court will not enforce agreements or language that have to do with your children and custody, conservatorship, visitation, or support. Property, however, if it does not violate principles of Texas public policy will be enforced in nearly all situations.

Key Requirements for a Valid Prenuptial Agreement

What do you need to have a valid prenuptial agreement? The answer: not a whole lot. First, the agreement needs to be in writing. Going to a family court judge and telling him that you and your spouse created a prenuptial agreement verbally 15 years ago is not going to fly. Next, the agreement needs to be signed by both you and your fiancé. That’s it. Voluntariness is essential as it would be in any contractual signing. If you and your spouse voluntarily entered into the signing of the premarital agreement it should be considered valid so long as it is in writing and signed by both of you. Unconscionability is another major no-no, but that has to do with violating norms of public policy. A court will want to make sure that you did not agree so one-sided as to harm either one of you to a significant extent.

The big key to determining whether a prenuptial agreement is valid and thus enforceable is whether you both had attorneys. All the criteria matter but so does having an attorney. A court will be willing, likely, to overlook a few iffy situations with a premarital agreement if you have an attorney by your side. Each of you should have your attorney guiding you and helping you make decisions. If there is evidence that both of you had attorneys to assist you in the drafting and creation of the document this alone will give you some latitude with a court when it comes to enforceability.

Challenges to Prenuptial Agreement Validity

However, not all prenuptial agreements will be declared valid by a court in the future. Some conditions can render the agreement invalid. If the prenuptial agreement violates the law in any way, that portion of the prenup will be considered invalid and unenforceable. Creating a prenuptial agreement to defraud anyone is an example of an invalid clause. Additionally, if the prenup addresses issues related to child support, those sections will also be invalid and unenforceable in the future.

A significant issue in these situations arises when a spouse fails to disclose all their property to their fiancé before entering into a prenuptial agreement. Much of the prenuptial negotiation process relies on honesty about the property you both own. Texas is a community property state, meaning that any property acquired during the marriage is subject to division. However, at the time you and your fiancé create a prenuptial agreement, you are not married. Therefore, none of that property is divisible at that stage. This is known as separate property.

Factors in Dividing Property in Divorce and Prenuptial Agreements

There are factors to consider when dividing property in a divorce. The amount of community property you own is one factor but this is something that you and your fiancé have no clue about at the time you are creating the prenuptial agreement. You can’t rely upon assumptions so this is a part of the equation that you all cannot rely upon. Other factors include your income level. If you are a high-earning doctor and your spouse works as a substitute teacher then obviously your income trumps hers by a wide margin.

As a result, you may include in your prenuptial agreement that your fiancé would receive 90% of any community property divided in a divorce. You would likely feel secure financially due to your high income potential, workplace skills, connections, and experience.

Your fiancé may struggle to find her footing after the divorce, especially compared to you. Consequently, you could end up handing over a significant amount of the property you both come to own.

Hiding property that you own can create a situation where your fiancé relies on your assurances that you do not possess much property. This could lead her to conclude that a 50/50 split of the community property in your divorce would be fair.

However, if your fiancé had known that you were well-off or had inherited a considerable sum from a deceased relative before you started dating, she would likely have negotiated that portion of the prenup differently.

Emotional Challenges in Prenup Discussions

This is to say nothing about how tricky it can be to engage in negotiations on a prenuptial agreement with your spouse from a relational and emotional perspective. Did you grow up talking about money with your family? Most people did not. Money is usually a taboo subject as far as having honest discussions even with people that we love. If this was the type of household that you grew up in then even knowing how to start a discussion like this can prove to be difficult. It can take some fortitude on your part to get that discussion underway.

If the idea to have a prenuptial agreement is yours then you need to artfully bring up the conversation with your fiancé. This is especially true if the two of you are not used to talking about money. He or she can take it the wrong way when you mention a prenuptial agreement. The stereotypes surrounding prenuptial agreements are that they are only for rich people with an eye for getting richer. Or, prenuptial agreements are created by selfish people to keep their less wealthy fiancé from being able to gain wealth in a divorce scenario.

Preparing for Prenup Discussions with Your Fiancé

The most important thing that you can do is offer information to your fiancé before engaging in serious negotiations. Talk to him or her about the “why” behind what you are doing. Help him or her to better understand your motivation for having engaged in this line of thought about a premarital or prenuptial agreement. Then, you should be quiet and see what their response is. Some people will be receptive to the idea of a prenuptial agreement. You may even find that he or she has similar concerns as you do about finances, divorce, and the intersection of these two subjects.

Once you have broached the subject sufficiently with your fiancé you can engage him or her in a discussion about your goals and what you think the two of you need to focus on. The more specific you can be the better an agreement you will end up making. This is where having an experienced family law attorney can pay dividends for you. An attorney can help you learn about what you could expect in a divorce so that you are better able to negotiate various points with your fiancé during a prenuptial agreement negotiation. If you do not know the law then you need to find someone who does. Making assumptions can lead to bad outcomes. Rather than having that happen, why not work with an attorney who has your best interests in mind?

What about a common law marriage can invalidate your prenuptial agreement?

A prenuptial agreement has to be agreed to by you and your fiancé before you get married. Hence, why it is called a prenuptial agreement. If you want to create a marital property agreement you may do so but if that is what you want to do that is the document you create. A problem can be had if you create a prenuptial agreement but later come to find out that you were married when the prenuptial agreement was signed by you and your fiance. I suppose at that point you all wouldn’t have been fiancé to one another, but spouses.

You may be asking yourself- how in the world would you and your spouse not know that you were married? This is one of the curious and interesting parts of being in a common-law marriage. There are three components to a common law marriage that need to be simultaneously true. First, you and your spouse need to agree to be married. This can be done with a simple agreement that you make verbally to one another. From that point forward, you and your partner are going to be married and live as spouses.

Establishing a Common Law Marriage

Next, the two of you need to live together or cohabitate. If you all need to prove that you were common law married this can be the most difficult part of the common law marriage to substantiate. Cohabitation is not like it was generations ago when married people went through a formal ceremony and then lived together. Now, people live in much more fluid relationships as well as housing situations. Having something like a utility bill with both of your names on it is a good starter. A mortgage or lease agreement with both of your names is better. Testimony from other people that both of you were always seen at home together can be helpful, as well.

Finally, you and your spouse need to have held out to the community that you were married. You may not have had a formal marriage ceremony to ring in your marriage but you could have had a celebration to announce to your friends and family that you were married. This is a good indicator that you are not trying to hide that you are married and not just dating the other person. Referring to the other person as your “spouse”, “husband” or “wife are also telltale signs of marriage. You do not want a situation where people were surprised that you were married. Rather, you want a situation where the people in your life are well aware of your common-law marriage.

Legal Implications of Common Law Marriage in Divorce Cases

When all three of these conditions are present simultaneously you have a common-law marriage. When you are common law married to another person the law treats your marriage the same as it would the people down the street who got married in a traditional wedding ceremony. This means, for our discussion, that you cannot leave the marital home and start anew immediately afterward as a single person. This is not like breaking up with your girlfriend, taking your clothes, and then renting an apartment. Rather, your spouse will have something to say about that in terms of seeking a divorce, in all likelihood.

Proving the existence of a common-law marriage is a relevant part of a divorce case. It is not uncommon for one person in a common law marriage to assert that the relationship in question is a marriage and thus requires a divorce. On the other hand, the other person may claim that there was no common-law marriage. They might argue that it was a more casual relationship.

While your spouse files for divorce, you can respond to the divorce petition with a counter-petition. In this, you would assert that your relationship was never a marriage but rather a dating relationship.

Both of you would submit evidence at a hearing. The judge would then determine whether it was a marriage or a dating relationship based on the admitted evidence.

Impact of Common Law Marriage on Premarital Agreements

This does not even begin to discuss issues related to premarital agreements. The Texas Family Code says that a premarital property agreement becomes effective on marriage (Texas Family Code Section 4.004). This is the triggering event for the premarital agreement to have some legitimacy. A premarital agreement without a marriage has no importance, at all. Rather, the premarital agreement is theoretical at that stage. Once you tie the knot and get married the document would be the controlling document in the event you get divorced at least regarding property division and other financial matters.

The key question that we need to answer is what impact a common law marriage has on a premarital agreement. On a practical level, it does not happen very often that the couple who think of creating a premarital agreement would forego the marriage ceremony and instead would get married via a common law marriage. It certainly would be legitimate to do this, but I can’t see it happening all that frequently. However, let’s suppose that this was the situation that you and your spouse find yourselves in. When is a premarital agreement legitimate and valid? When is the agreement considered invalid? These questions depend on the timing of the events that led to the marriage and the signing of this document.

Timing and Validity: Premarital Agreements and Common Law Marriage

The order of operations is important. For one, if you get common law married first and then create the premarital agreement then the premarital agreement is invalid. The order of operations says that premarital agreement comes first and then becomes effect upon marriage. There is room for confusion with a common law marriage. There is no clear line regarding when a common law marriage begins. However, you need to be certain about the order in which you handle a premarital agreement and your common law marriage. If you don’t, you may have to discard the premarital agreement and create a marital property agreement instead.

Understanding the implications of a prenuptial agreement in the context of common law marriage is essential. This knowledge is important for couples seeking to protect their assets and clarify their financial rights. A common law marriage prenup provides a proactive approach to defining property division and spousal support expectations if the relationship ends.

It offers clarity and security, especially in states like Texas, where common law marriages are recognized under specific criteria. By drafting a prenuptial agreement tailored to their circumstances, couples can reduce potential conflicts. They can ensure their assets are protected according to their intentions.

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2. How Do Prenups Get Thrown Out?
3. How Hard Is It To Break a Prenup?
4. How to Protect Yourself or Your Client from Denial of Judicial Recognition of Obergefell Retroactivity in Common Law Marriage
5. Can Common Law Marriage be Backdated / Is Obergefell Retroactive?
6. What Makes a Common Law Marriage Valid in Texas?
7. When trying to establish a common law marriage in Texas these scenarios alone are insufficient
8. What does it mean to be common law married in Texas?
9. Wondering if you’re common law married in Texas? Read this to find out if you are
10. How can you tell if you are common law married in Texas?
11. Common Law Marriage in Texas: Defining your relationship
12. Can you get alimony in Texas when your common law marriage ends?
13. The Dirty Trick of the Common Law Marriage
14. Common Law Marriages in Texas, Part Two
15. All about marital property agreements in Texas
16. Proving Voluntariness in the Courtroom for a Premarital Agreement
17. Common Law Marriage and Texas Divorce Guide

Bryan Joseph Fagan( Attorney )

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.