I am a divorce lawyer in Houston, Texas. After they are divorced, most of my clients state that they will NEVER get married again. Some say, “If I ever get married again, I’m doing a prenuptial agreement.” They are referring to what is also known as a premarital agreement.
This article is intended to give the layperson a better understanding of:
- what a premarital agreement is, and what it can and cannot include, and
- the effect of the agreement upon divorce in Texas.
Section 4.003 of the Texas Family Code provides that the parties to a premarital agreement may contract with respect to:
- The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
- The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
- The disposition of property on separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
- The modification or elimination of spousal support;
- The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
- The ownership rights in and disposition of the death benefit from a life insurance policy;
- The choice of law governing the construction of the agreement; and
- Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing criminal penalty.
- The right of child support may not be adversely affected by a this agreement.
As you can see, the statute allows the parties to contract for a wide range of issues. However, the statute is clear that limitations on support obligations owed to minor children are subject to review by courts as being against public policy.
Having this agreement can alleviate many problems when getting divorced. However, if one spouse really wants to attack the premarital agreement, there are reasons that are allowed for specifically in the Texas Family Code. Section 4.006 states that this agreement is not enforceable if the party against whom enforcement is requested proves that:
- The party did not sign the agreement voluntary, or
- The agreement was unconscionable when it was signed and, before signing the agreement, that party:
a. Was not provided a fair and reasonable disclosure of property or financial obligations of the other party;
b. 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
c. Did not have, or reasonably could not have had, adequate knowledge of the property of financial obligations of the other party.
- An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.
- The remedies and defenses in this section are exclusive remedies or defenses, including common law remedies or defenses.
A creative attorney can usually make a legitimate argument in trying to challenge the validity of a premarital agreement. Below are some examples of how an attorney can challenge the validity of provisions in a premarital agreement. An attorney may make an argument that Texas Family Code §6.502 permits the award of interim fees, even though there is a provision to the contrary in a premarital agreement. Another example is where a provision in a premarital agreement provides for a 50/50 split of community property. There is case law stating a clause requiring a 50/50 split encroaches upon the trial court’s statutory duty to order a division of the estate in a manner deemed just and right.
In all, a creative attorney can find a way to challenge the validity of a premarital agreement, or at least some of the provisions in a premarital agreement. At the same time, a creative attorney can also find ways to eliminate as many challenges as possible to enhance your confidence in your premarital agreement. If your premarital agreement does not get challenged or triumphs over the challenges, the court should render a judgment in accordance with the premarital agreement.