Does the existence of a common law marriage void a premarital agreement?

Prenuptial agreements are not just for the rich and famous. Prenuptial agreements have been recognized by Texas family law courts for over forty years. So long as there is no evidence that the agreement was entered into fraudulently or that you were coerced into signing the document it is enforceable. The beauty of a premarital agreement is that you and your fiancé do not need to go to court or file a legal case to get the agreement drafted and signed. 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.

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.

However, it is not as if all prenuptial agreements are going to be declared valid by a court in the future. Some conditions can come into play which can render the agreement invalid. If the prenuptial agreement violates the law in any way then you are looking at a situation where at least that portion of the prenup that violates the law will be held as invalid and not enforceable. If you create a prenuptial agreement to defraud anyone then that is an example of an invalid clause in the agreement. As we mentioned earlier, if the prenup focuses on issues related to child support then at least those sections of the agreement will be invalid and unenforceable in the future.

A big issue that comes up in these situations is when a spouse does not disclose all of their property to their fiancé before entering into a prenuptial agreement. So much of the prenuptial negotiation process depends upon you and your fiancé being honest with each other about the property that you own. Texas is a community property state which means that the property that you acquire during your marriage is subject to division. However, at the time you and your fiancé created a prenuptial agreement, you are not married and therefore none of that property is divisible. This is known as separate property.

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 write into your prenuptial agreement that your fiancé would receive 90% of any community property divided in a divorce. You would ostensibly be ok from a financial position due to your high-income potential, skills acquired in the workplace, connections, and experience. Your fiancé may struggle to find her footing after a divorce (at least compared to you) and as a result, you could find yourself handing over a great deal of the property you all come to own.

Hiding property that you own can create a situation where you have caused your fiancé to rely upon your assurances that you do not own a great deal of property only to conclude that a 50/50 split of the community property in your divorce would be fair. However, had your spouse known that you were well-off or had acquired a lot of money from a deceased relative before you started dating then that would have caused your spouse to negotiate that portion of the prenup differently.

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.

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.

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.

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 assert that there was not a common-law marriage and that it was a more casual relationship. While your spouse files for divorce you may answer the divorce petition with a counter-petition that yours was never a marriage, but rather a dating relationship. Each of you would submit evidence in a hearing and the judge would determine whether it was a marriage or a dating relationship based on the admitted evidence.

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 to create 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 and when is the agreement invalid based on the timing of events that led to the marriage and signing of this document?

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 certainly room for confusion with a common law marriage since there is no bright line as to when the common law marriage began. However, you need to be sure about the order in which you are doing things when it comes to a premarital agreement and your common-law marriage. If you don’t you may have to ditch the premarital agreement and create a marital property agreement instead.

Book an appointment with Law Office of Bryan Fagan using SetMore


Adobe Stock 62844981[2]If you want to know more about what you can do, CLICK the button below to get your FREE E-book: 16 Steps to Help You Plan & Prepare for Your Texas Divorce

Divorce Wasting Assets[4] If you want to know more about how to prepare, CLICK the button below to get your FREE E-book: 13 Dirty Tricks to Watch Out For in Your Texas Divorce, and How to Counter Them” Today!

Other Related Articles:

  1. What living arrangements may lead a judge to conclude that you are common law married?
  2. Dangers of Common Law Marriage with Estate Planning
  3. Hidden Risks for Couples Ending Common Law Marriages
  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

Categories: Uncategorized

Share this article



Contact Law Office of Bryan Fagan, PLLC Today!

At the Law Office of Bryan Fagan, PLLC, the firm wants to get to know your case before they commit to work with you. They offer all potential clients a no-obligation, free consultation where you can discuss your case under the client-attorney privilege. This means that everything you say will be kept private and the firm will respectfully advise you at no charge. You can learn more about Texas divorce law and get a good idea of how you want to proceed with your case.

Plan Your Visit

Office Hours

Mon-Fri: 8 AM – 6 PM Saturday: By Appointment Only

"(Required)" indicates required fields