Prenuptial Agreements in Texas

Texas Prenuptial Agreement Attorneys

A prenuptial agreement (or prenup) is an agreement signed before marriage by the two future spouses on how to treat their property during marriage and in the event of divorce. Anybody can get a prenup in Texas but they are most commonly used for people with large estates, businesses, or complex financial assets. Enforcing a prenup during a divorce is not always an easy task. Your attorney must prove that the agreement was valid and meets all the requirements under the Texas Family Code. If the judge decides the prenup is not valid, then you cannot go back and make the agreement valid. A family law attorney experienced in drafting prenuptial agreements can help ensure the prenup holds up if you need it. 

Do you need a prenup agreement?

There is no absolute answer here. People who come into a marriage with a lot of assets are most likely to desire a prenup agreement. Marriage does not entitle you to your spouse’s pre-marriage property under Texas law but figuring out who owned what assets when can be a complex and expensive financial investigation. A valid prenup addressing property division can help make a divorce less complex and expensive. A prenup agreement can be very useful in high net worth divorces.

For a more extensive discussion, see this post Should I get a prenup in Texas?

If you believe you may need a prenup agreement, then the best thing to do is talk to an experienced Texas prenup agreement attorney about your needs and whether an agreement would be useful. 

What happens if I don't have a prenup agreement?

Without a prenuptial agreement the marital estate will be divided by either an agreement during a divorce or under Texas law. Texas is a community property state. Generally that means assets acquired during the marriage are jointly owned while assets acquired before marriage are separately owned. (There are a lot of exceptions to this general rule.) Texas law also presumes that all property in the marital estate is community property. That means each spouse must prove what is their separate property and then argue over how to divide the community property. In complex and large marital estates this can make the property division in a divorce significantly more difficult. 

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What if my fiancé won't sign a prenuptial agreement?

You cannot force your fiancé to sign a prenuptial agreement. If your fiancé signs the agreement under duress, then the agreement will not hold up in a divorce. 

If you and your fiancé cannot come to an agreement about signing a prenup, then you will have to make a decision about whether you want to proceed with the marriage without one. An attorney can talk to you about alternatives that may protect some of your assets without a prenup. 

What do I do if my fiancé asks me to sign a prenup agreement?

If your fiancé asks you to sign a prenup, then you should talk to an experienced Texas prenuptial agreement attorney right away. You need to understand your rights and obligations under the agreement. You also need a fair understanding of the assets addressed by the prenup. Your attorney may want to revise the agreement or request additional information before advising to sign it.

Having an attorney on your side is a good idea even if you sign the prenup. In the event of a divorce it will help show the agreement was fairly considered, without duress, by both sides. 

Can I contest a prenup agreement in Texas?

Yes, you can contest a prenup agreement in Texas. This happens most commonly during a divorce. You can attack a prenup on several grounds in Texas. The spouse asserting the agreement must defend against any defense raised. These include:

  • The prenup agreement is defective under contract law;
  • It only partially addresses assets in the marital estate so it leaves other assets subject to Texas property law;
  • The prenuptial agreement attempts to decide child custody or child support issues;
  • The agreement was not signed by both parties;
  • It was not signed voluntarily by both parties;
  • The spouse asserting the prenup did not adequately disclose finances, the spouse challenging did not waive disclosure in writing and the spouse challenging could not have known about the assets before signing.
If the prenup survives all of your challenges, then it will be enforceable even if the outcome is harsh. This is why it is extremely important to hire a Texas prenuptial agreement attorney before signing an agreement.