Why a Prenup May Not Hold Up in Court

by Cindy Hide

Ironclad Prenup… or Is It?

Years ago, prenuptial agreements were primarily limited to instruments and exercises for high wealth families. Today, couples of all ages and economies draft prenups, and if drafted properly, stand the test of litigation.

In Texas, prenuptial agreements are regularly honored by our courts just as any other contract. There are some basic elements, however, that must be met in order to be valid. The following list includes some of the most significant:

  1. The contract was not signed before the wedding ceremony.

Prenups are only enforceable in Texas if they are in writing and signed by the parties before marriage. It’s not uncommon for couples to think they can wait to sign their prenuptial agreement after their ceremony. This is not accurate. A prenuptial agreement is just that – a PRE-nuptial (meaning before) getting married. If you wait until after marriage to sign, you’ll need your attorney to reconstruct your agreement as it has become a POST-nuptial (meaning after) marriage, or partition, agreement. Texas only recognizes a written prenuptial agreement and it must be signed before your wedding ceremony

  1. Your prenuptial agreement is based on or contains information that is not true.

Parties to a prenup should fully disclose any and all assets and liabilities (debts) during the process of creating a prenuptial agreement. If one or both of you is not truthful about your financial affairs, it could be the basis setting aside, or invalidating your contract in the event of divorce or death

  1. One of the parties was pressured to sign the prenuptial agreement.

Feeling pressured to sign a contract is called duress. Being under duress to sign is a valid reason to set aside, or invalidate a prenuptial contract in the event of divorce. Both parties should be represented by counsel in order to insure that this is not the case and that you are negotiating on equal terms through your counsel.

  1. The parties have attempted to alter rights and duties or child support

It’s against public policy in Texas to attempt to alter statutorily defined child support as set by the Texas legislature. An obligation to pay child support cannot be waived by the parties. If this is attempted, the agreement may be held invalid. State statutes will always trump an agreement by the parties.

  1. The agreement is held to be “unconscionable.”

Prenuptial agreements should be fair, and the courts and case law support this premise. This does not mean, however, that one party is barred from making a bad deal. But, if the agreement is so unfair given the totality of the circumstances of both parties, or, there is the possibility that it was signed under duress, your prenuptial agreement may be wading into “unconscionable’ territory. Generally speaking, there must be no overriding or heavy handed lifestyle clauses or economic extremes within the prenuptial agreement that could be construed as overbearing within the context of the relationship. This is yet another reason why it’s extremely important to consult with and retain a family law attorney who is well versed in drafting these unique documents.