Ideally, a prenuptial agreement protects the parties from unjust divisions of property or attempts at legal vengeance in the event of a divorce. But what happens when the problem is with the prenup itself? What if it was not written properly? Does it make demands that can’t legally be enforced?

A prenup, also known as a premarital agreement, should be a way for a couple to make early determinations about what they would do in the worst-case scenario, reducing uncertainty and starting the marriage with honesty and clarity. However, most people think of it as a tool of wealthy or untrustworthy people, and sometimes it has been. To help prevent abuses, the state of Texas has adopted the Uniform Premarital Agreement Act (Texas Family Code §§ 4.001 et seq.). This sets out rules about how to construct an enforceable agreement.

A Texas premarital agreement must be:

  • In writing
  • Signed by both parties
  • Made beforehand “in contemplation of marriage”—that is, because you intended to get married when you created it

The agreement becomes effective upon marriage. Although it can be changed or revoked, that change must also be in writing and signed by both parties. Without these conditions, there is no agreement. An effective premarital agreement must follow Texas contract law in general, although there does not need to be any consideration for a premarital agreement.

What Is a Premarital Agreement Allowed to Decide?

A premarital agreement can cover a broad range of issues: defining the individual property of each partner; assigning rights to buy, sell, and bequeath property by will; and even whether or not a party is entitled to spousal support in case of divorce. Texas law favors freedom of contract, which means that people have the right to sign many kinds of agreements, including bad ones. A spouse cannot be freed from the agreement simply by alleging that it is unfair—even if it is.

Nevertheless, not everything is on the table. A premarital agreement cannot reduce or take away a child’s right to child support. Furthermore, the agreement cannot create any obligation that is “in violation of public policy or a statute imposing a criminal penalty.”

A Texas court will not enforce a premarital agreement that was:

  • Not made voluntarily, or
  • Unconscionable.

(See Tex. Fam. Code § 4.006.)

Involuntary Agreements and Unconscionable Agreements

What constitutes a premarital agreement made “involuntarily” in Texas? It is not easy to convince a court of this and to do so, a party must present evidence of circumstances such as fraud, duress, or undue influence. Even then, it must be strong evidence.

One partner may demand that the other sign an agreement before they get married, even on the wedding day—but that is not enough to say that the other partner was “under duress” when they signed it. Duress is a threat to do something that one has no right to do, and anyone can refuse to get married. Evidence of lies may not even be enough, depending on what the lies were about. But the court will examine all the circumstances together to determine whether the agreement was made voluntarily.

For an agreement to be “unconscionable,” it is not enough for the agreement to simply be unfair to one spouse; instead, it must be “grossly one-sided,” as one court wrote. Moreover, it must have been unconscionable at the time it was signed—not only later. Unconscionability is very difficult to use as a defense to contract in a Texas court.

Moreover, in order to show that a premarital agreement is unenforceable for this reason, a party must also prove that they

  • were “not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
  • “did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
  • “did not have, or reasonably could not have had, adequate knowledge of the property or financial obligations of the other party.”

For better or worse, it is not easy for a premarital agreement to be thrown out in a Texas court, but it does happen. This is a complex and difficult matter, with results that may not seem to make sense. A judge, for example, may decide to enforce a premarital agreement even if the marriage itself was null and void, if “only to the extent necessary to avoid an inequitable result.” (See Tex. Fam. Code § 4.007.)

Don’t try to navigate this area of law alone at a terrible time in your life. Our Houston office is waiting to talk to you and help you with the understanding and determination that you need.