Premarital agreements (also known as prenuptial agreements) provide a predictable mechanism for couples contemplating marriage to contract around Texas community property law. There are a broad range of situations that make a prenuptial agreement an important safeguard, and such agreements provide appropriate estate planning in the event of divorce or death of either spouse. A prenuptial agreement offers the parties a chance to agree in advance on how property and debt division and other financial issues will be handled upon divorce.
While prenuptial agreements can be a way to avoid contentious litigation, the influential role that they serve makes it imperative that the form and terms of the agreement comply with legal requirements so that the judge enforces the agreement and fulfills the expectation of the parties upon marital dissolution. The minimum requirements for a prenuptial agreement to be enforceable are set forth in Title 1, Chapter 4 of the Texas Family Code per the Uniform Premarital Act. At the Law Offices of Lori Elaine Laird, PLLC, we recognize the importance of ensuring that our clients can rely on the enforceability of their prenuptial agreement so we have provided an overview of requirements for a valid enforceable Texas prenuptial agreement:
Written vs. Oral Agreements: The agreement must be in writing, and oral agreements are almost completely unenforceable in most instances.
No Duress or Coercion: The parties must arrive at the agreement without duress or coercion. A freely negotiated agreement between the parties generally will be enforceable. If the agreement is extremely inequitable, however, this may support allegations that the agreement was obtained by use of duress. The best practice when negotiating and drafting a prenuptial agreement is for both parties to be represented by legal counsel. A party will have a much harder time claiming that he or she was coerced into accepting the terms of the agreement if both parties have access to legal advice and representation during the preparation of the terms and language of the prenuptial agreement.
Proper Disclosure: Each spouse has an obligation to make full and accurate disclosure of assets and debts to the other party. If a party omits property or liabilities or misrepresents the assets to their spouse, this may provide a basis for challenging the prenuptial agreement during a marital dissolution.
Not Unconscionable: This essentially means that the agreement cannot be so unfair and inequitable that no reasonable person would have agreed to the term of the prenuptial agreement. Because a court can disregard a prenuptial agreement if the terms are too unfair, it is important to work closely with an experienced divorce attorney who can help you evaluate whether the agreement is balanced enough to be enforceable.
No Child Support/Custody: While the premarital agreement may address financial issues and non-financial issues as long as they do not violate public policy, the agreement may not establish custody, visitation or child support arrangements. Parenting time arrangements and other issues related to the children will always be subject to the best interest of the child standard. Further, the court will likely use the child support guideline formula when making child support orders.
While a prenuptial agreement can be a powerful tool for preventing acrimonious litigation if a marriage breaks down, both parties may find their expectations frustrated if the negotiated agreement is disregarded by the courts during a divorce because of substantive issues or the failure to comply with legal formalities. Experienced Houston marital dissolution attorney Lori Laird provides legal counsel on potential issues when negotiating prenuptial agreements and can artfully draft a prenuptial agreement. In the event of divorce, she also offers litigation services to clients seeking to challenge or enforce the terms of a Texas prenuptial agreement.