State Specific Summary: Howdy, Texas!

May 15, 2021 | Prenuptial Agreements, Second Marriages

In Texas, a prenuptial agreement is referred to as a “premarital agreement,” and it is described as an agreement between two parties who are planning to marry and want to clarify what will happen to the marital property in the event of divorce or separation. In Texas, a premarital arrangement isn’t legally binding until the marriage takes place.

What kinds of things would you include in a Texas prenup?

Parties to a premarital agreement in Texas may include the following in their agreement, according to the Texas Family Code and the Texas Uniform Premarital Agreement Act, Sec. 4.003.

  1. property rights and responsibilities;
  2. right to control or manage property
  3. the disposition of property in the event of a divorce, a death, or some other event;
  4. spousal support modification or elimination
  5. the ownership rights to and disposition of a life insurance policy’s death benefit;
  6. the applicable law for this agreement; and
  7. any other issue, including their personal rights and responsibilities, that is not illegal or contrary to public policy.

***A Texas prenup cannot contract away the rights of children.

Please notice that the above text has been edited for brevity from the Texas Family Code.

What could cause your Premarital Agreement to be null and void?

According to the Texas Family Code and Section 4.105 of the Texas Uniform Premarital Agreement Act, if a party attempting to invalidate the premarital agreement is able to show the following, the agreement may be declared unenforceable in whole or in part:

(1) The agreement was not willingly signed; or

(2) The agreement was unconscionable when it was signed because that party was not given a fair and appropriate notice of the other party’s property or financial obligations OR did not waive their right to disclosure *in writing* and did not have sufficient knowledge of the other party’s property or financial obligations.

Check out the Texas Uniform Premarital Agreement Act, Sec. 4.105 for the complete fine print.

Separate Property vs. Community Property in Texas

The state of Texas is one of nine in the United States that follows the “community property” principle. In general, this ensures that both partners own equal shares of any property obtained during their marriage. Furthermore, community property is considered to be property held by either partner during the divorce proceedings. This is why you should think about getting a prenuptial agreement!

Separate Property is described as follows in Section 3.001 of the Texas Family Code:

  • Property owned before marriage
  • property acquired by donation, devise, or descent during the marriage; and
  • any recovery for personal injury suffered by the partner during the marriage, except any recovery for loss of earning power.

>>Read Citation: TX Fam Code 3.001 for the full fine print.

Texas Spousal Support in the Event of Divorce or Legal Separation

The court may consider the following factors in deciding the type, length, and manner of help, according to Texas Family Code Sec. 8.052.

  1. Willingness to fulfill the bare minimum of practical needs on one’s own, taking into account one’s spouse’s financial support in the event of divorce.
  2. employability and schooling
  3. the duration of the marriage
  4. your age, work experience, earning potential, and physical and emotional well-being
  5. the impact of maintenance on each spouse’s ability to meet his or her own needs when making child support or maintenance payments, if applicable
  6. either spouse’s actions that result in unnecessary or unusual expenses or the loss, concealment, or dishonest disposal of community property
  7. one spouse’s contribution to the other spouse’s schooling, training, or improved earning power
  8. land acquired during the marriage
  9. contributions to the marriage that are not monetary
  10. Infidelity in the marriage
  11. a history of family violence or a pattern of family violence

It’s critical to recognize that if a Texas couple wishes to divorce without a prenuptial agreement, a variety of factors will come into play. You and your spouse will avoid a court using rules to make decisions on your behalf by clarifying maintenance of your prenuptial agreement prior to divorce or separation.

Divorce:

The term “grounds for divorce” is the official term for filing for a divorce in Texas.

Obtaining a “dissolution of marriage” (also known as a “divorce”) requires “grounds for divorce” to be established without either party needing to give any justification for wanting to end the marriage or legally separate.

A prenuptial agreement in Texas must be signed freely.

In 1993, the Texas Legislature amended the Texas Family Code, excluding common-law defenses from prenuptial agreements signed on or after September 1, 1993. Please, in English. This means that after September 1, 1993, the only grounds for questioning the implementation of a Premarital Agreement in Texas are “involuntary execution” and “unconscionability.” Here’s where you can read the fine print >> Tex. Fam. Code 4.006

A Premarital Arrangement is not enforceable if the contesting party can show that they did not sign it willingly, according to Tex. Fam. Code 4.006(a)(1). The Fourteenth Court of Appeals (Houston) noted, however, that a party is expected to understand the contents of a contract that he or she has signed and has an obligation to protect themselves by reading the agreement before signing it. Marsh v. Marsh, 949 S.W.2d As a result, an arrangement that is “unfair” because it benefits one party over another unfairly is not inherently unconscionable. Below is more information on the Marsh situation.

Examples in Texas Case Law

How far in advance of the wedding must a Texas prenuptial agreement be signed? Is it unconscionable to sign a prenuptial agreement too close to the wedding?

The burden of proof is on the challenging party to prove that the Prenuptial Agreement should not be upheld under Texas law. As explained below in Williams v. Williams, signing an agreement one day before marriage is not enough to make it unenforceable.

Read the entire case here: Williams v. Williams, 720 S.W.2d 246

The Williams story…Linda, the wife, and Louis, the husband, were married on April 17, 1982, in Boerne, Texas. Before marrying, the couple had spent a lot of time together and traveled together. Both parties had children from previous relationships. Louis provided Linda with a premarital agreement, also known as a “Agreement in Anticipation of Marriage,” in the late afternoon on the day before the couple’s wedding. Louis told Linda that he had already negotiated the agreement with her and was certain that she would have no objections based on their conversations. Linda expressed her dissatisfaction with the document, but she decided to sign it because about twenty of their friends and family members had been invited to the wedding and were scheduled to arrive the next day. Linda and Louis went to a bank to get their agreement signatures notarized. To cut a long story short, the fact that the Premarital Arrangement was signed one day before the couple’s wedding did not make it unconscionable, according to the appeals court in Williams. In this case, the Texas Appeals Court determined that a Prenuptial Agreement signed on the day of the wedding was not obtained by deception, duress, or overreaching. The court argued that the wife had business experience and that the pair had spent six months discussing the terms of the agreement. The prenuptial agreement was upheld.

The Moore story… Wife provided proof that Husband misrepresented his financial status before they married and said he forced her to sign a Premarital Agreement to protect her from “loans, liens, and litigation.” In a “collaborative effort,” the husband first tried to use his own counsel to assist them in writing the agreement. Husband then proposed that Wife find an attorney and agreed to pay for it, but then refused any attorney that Wife suggested for representation and instead ordered her to hire one of his choice. He then blocked Wife’s attorney’s attempts to review the Prenuptial Agreement draft until the couple’s wedding was just hours away. Wife had to check Husband had given full disclosure of the existence, scope, and value of his properties before signing the Prenuptial Agreement, which also allowed her to waive any further disclosure. Before signing, the wife was unable to contact her solicitor. Due to the evidence at hand, the Court determined that this arrangement was involuntary and therefore unenforceable.

Read the entire case here: Moore v. Moore, 383 S.W.3d

Is the Prenuptial Agreement deemed ‘unenforceable’ if you sign it without an attorney?

In the case of Marsh, the fact that Husband was not represented by an attorney did not mean that the agreement was obtained by deception, duress, or overreaching, according to the court in Marsh. Despite being advised to do so, the Husband chose not to employ legal counsel but the agreement was upheld.

Read the case here: Marsh v. Marsh, 949 S.W.2d 

Is the “unfairness” of the terms of a Texas Premarital Agreement a factor in determining if it is “unconscionable”?

The Court in Chiles held that one-sided terms of a Prenuptial Arrangement do not imply unconscionability, and that even though an agreement is unequal, unfairness is not a factor in its enforceability.

Read the case here: Chiles v. Chiles, 779 S.W.2d

Is a Texas prenup unconscionable because of a lack of financial disclosure?

According to the Marsh case, if a court finds that a Premarital Arrangement is unconscionable, the contesting party must also show that they were not given a fair and appropriate notice of the other party’s finances, land, or contractual responsibilities before signing the agreement. Tex. Fam. Code 4.006(a)(2) requires this disclosure (A).

Read the case here: Marsh v. Marsh, 949 S.W.2d 

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