Prenuptial and Postnuptial Agreements
Prenuptial agreements (often called “prenups”) and postnuptial agreements (or “postnups”) are valuable legal tools for couples in Texas looking to protect their assets, clarify financial expectations, and plan for the future. A prenuptial agreement is a contract entered into before marriage, while a postnuptial agreement is created after the couple is already married. Both can address how property, debts, and other financial matters will be handled in the event of divorce, death, or other life changes.
Prenuptial and Postnuptial Agreements
Under Texas law, these agreements allow prospective spouses and spouses to define their property rights beyond the state’s default community property rules, whereby assets acquired during marriage are generally considered shared equally between spouses. They can specify what remains separate property, outline spousal support (alimony), and even govern income from separate assets. For example, a prenup might protect a family business or inheritance, while a postnup could be useful if one spouse starts a new venture or receives a windfall after marriage.
These agreements promote transparency and can reduce conflict during difficult times, but they must be fair and voluntary to hold up in court. They cannot dictate child custody or support terms that go against the child’s best interests, as those are determined by the court. If you are considering a prenuptial or postnuptial agreement, consulting an experienced Texas family law attorney is essential to ensure the agreement meets your needs and complies with state statutes.
Drafting an Enforceable Agreement in Texas
Drafting a prenuptial or postnuptial agreement in Texas requires careful attention to legal requirements to ensure it is enforceable. Texas has adopted the Uniform Premarital Agreement Act for prenups (Texas Family Code Chapter 4, Subchapter A) and provides similar rules for postnups under Subchapters B and C. The following is a step-by-step guide to creating a strong, valid agreement:
Key Formalities
- Written and Signed: The agreement must be in writing and signed by both parties. No consideration (like an exchange of value) is needed for enforceability.
- Timing: Prenups become effective upon marriage and can only be amended or revoked post-marriage with a new signed writing; prenups should be ratified with a Property Agreement between Spouses within 30 days of the date of marriage. Postnups can be created anytime during marriage and may include partitions of community property or conversions of separate property to community.
What Can Be Included
Agreements can cover a wide range of topics, as long as they do not violate public policy:
- Rights to manage, sell, or dispose of property.
- Division of assets upon divorce, separation, or death.
- Creation, modification or elimination of spousal support.
- Ownership of life insurance benefits.
- Choice of law for interpreting the agreement.
For postnups, you can also partition community property into separate property or agree that income from separate assets remains separate. However, postnups cannot adversely affect child support obligations or include terms that encourage illegal activity.Steps for Drafting
- 1.Full Disclosure: Both parties must provide a fair and reasonable disclosure of their property, assets, debts, and financial obligations. This can include schedules listing bank accounts, real estate, investments, and liabilities. If disclosure is waived, it must be done voluntarily and in writing.
- 2.Independent Counsel: Each party should have his/her own attorney to review the agreement. This helps avoid claims of unfairness and ensures both understand the terms. It is unethical for one lawyer to represent both sides.
- 3.Voluntary Execution: The parties must sign without pressure, allowing ample time for review—ideally weeks or months before the wedding for prenups.
- 4.Avoid Unconscionability: Terms should be fair because grossly one-sided agreements may be challenged. It is advisable to include a “severability” clause to preserve the rest of the agreement if one part is invalid.
- 5.Notarization and Recording: While not always required, notarizing signatures adds credibility and can help prevent future disputes about authenticity. For agreements affecting real property, record them in the county deed records for notice to third parties.
Tips for Success
- Start early to allow negotiation.
- Clearly outline expectations at the onset of negotiations.
- Be specific about assets to avoid ambiguity.
- Consider future changes, like career shifts or inheritances.
- Review periodically and amend as needed.
By following these guidelines, your agreement is more likely to be upheld, providing peace of mind. Always work with a Texas family law expert to tailor it to your situation.
Challenges to Prenuptial and Postnuptial Agreements: Validity Issues, Coercion, and More
While prenuptial and postnuptial agreements offer protection, they are not ironclad. In Texas, courts presume these agreements are valid, but they can be challenged and invalidated if they fail to meet statutory standards under Texas Family Code Section 4.006 for prenups or Texas Family Code Section 4.105 for postnups. The challenging party bears the burden of proving invalidity. Common grounds include unconscionability, lack of voluntariness, and inadequate disclosure. Understanding these issues can help parties avoid pitfalls when drafting or contesting an agreement.
Unconscionability
An agreement is unconscionable if it is grossly unfair or one-sided at the time of signing. Courts decide this as a matter of law. For example:
- One spouse gets all assets while the other assumes all debts.
- Extreme disparities in bargaining power, like if one party lacks financial sophistication.
However, merely being unconscionable is not enough to invalidate an agreement; it must be paired with inadequate disclosure, no waiver of disclosure, and lack of knowledge about the other party’s finances. In a recent case out of the Texas Court of Appeals, Stankewich v. Stankewich (2025), the court upheld the trial court’s ruling that the parties’ postnup was invalid and unenforceable due to findings of unconscionability and involuntary execution.
Coercion, Duress, or Involuntariness
Agreements must be signed voluntarily. If one party proves they signed under duress or coercion, the agreement may be void. Examples include:
- Threats to cancel the wedding, harm, or financial ruin.
- Emotional manipulation or physical pressure.
- Rushed signing without adequate time for review or counsel.
In Stankewich v. Stankewich, the Texas Court of Appeals upheld the trial court’s finding that a husband did not voluntarily sign a postnup due to duress (threats of homelessness, isolation, etc.) and undue influence (no control of finances, compromised mental state, etc.) from his wife, leading to the agreement’s invalidation. Similarly, courts have voided agreements where one party lacked independent legal advice or faced undue pressure.
Fraud or Lack of Full Disclosure
Full financial disclosure is crucial. Hiding assets, debts, or liabilities can render the agreement invalid. Challenges arise if:
- One party misrepresents his/her finances, forges documents, or conceals significant obligations like taxes or lawsuits.
- Disclosure was incomplete, and the other party did not waive it in writing or have adequate knowledge.
In In re Marriage of I.C. and Q.C. (2018), the Texas Supreme Court addressed enforceability issues, including forfeiture clauses, underscoring the need for clear, voluntary terms.
Other Validity Issues
- Mental Incapacity: If a party lacked the capacity to understand the agreement.
- Public Policy Violations: Terms that promote divorce or illegal acts are unenforceable.
Creditor Rights: Postnups cannot defraud preexisting creditors.
Defending or Challenging in Court
If challenged during divorce, courts review evidence like witness testimony, expert analysis (e.g., handwriting experts), and documentation. To strengthen enforceability, ensure separate counsel, thorough disclosure, and fair terms. If you believe an agreement is invalid, gather proof of the issues and consult a family law attorney promptly—statutes of limitations may apply, though they are tolled during marriage.
These challenges highlight why professional guidance is key. At Payne, Powell, Truitt & Chandler, Attorneys at Law, we can help draft valid, enforceable agreements or contest unfair ones based on Texas law.