For Better, Worse, Or Divorce Podcast

In this podcast episode, managing partner Brian Walters discusses prenuptial and postnuptial agreements and what is enforceable in these agreements. Brian includes scenarios where Texas courts are unlikely to enforce agreements and why they can get busted. Finally, Brian ends the episode by answering our listeners’ questions.

Proving an agreement was not signed voluntarily or that the agreement is unreasonable requires a skilled lawyer who understands the details of the case, the current case laws on these issues, and how to present these details to a judge or jury. Schedule a consultation with one of our partners to see if we are the right fit for you. If there is a topic you would like to hear on our podcast, email us.

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Your hosts have earned a reputation as fierce and effective advocates inside and outside of the courtroom. Both partners are experienced trial attorneys who have been board-certified in family law by the Texas Board of Legal Specialization.

Brian Walters: Thanks for tuning in to the For Better, Worse, or Divorce podcast where we provide you tips and insights on how to navigate divorce and child-custody situations in the state of Texas. I’m Brian Walters and here today I’m joined by Karina Rambeau to discuss busting and enforcing prenups and postnups. 

Welcome, Karina. We’re happy to have you join us. Let’s start by telling us a little bit about yourself, where did you grow up, where did you go to high school, college, law school, how did you end up in family law, all that kind of stuff.

Karina Rambeau: Sure. Well, first of all, I just wanted to start out by saying thank you for having me. It’s an honor to be here. I’m very grateful. A little bit about me, I grew up in the Dallas/Plano area. I’ve been in Texas for all of my life. I went to Texas A&M University for my undergrad and interestingly that’s actually where I first started working at a family law firm. My junior year of college I started working for a small firm and it just happened to be a family law firm. With slight deviations after law school I pretty much stayed on the family law track the entire time. After I graduated from Texas A&M I ended up back in Dallas at SMU for law school. I graduated in 2019, passed the bar in 2019.  

Brian Walters: Great. Well, I’m also an A&M undergrad graduate actually. Quite a long time before you. You definitely had better work than I did. My job when I was at A&M, I was a Subway sandwich delivery boy, so not exactly preparing me for the job I’m in now. Congratulations on getting a jump on it.

I suspect the family law world was different there in a college town than it would be in Dallas-Fort Worth. Probably in a lot of different situations. I actually was passing through College Station on Friday bizarrely. I had a deposition northwest of there and I had to stop there for coffee or whatever. I hadn’t been back in a while. It was interesting to see the old town.

Karina Rambeau: Yeah. I mean, it’s changed quite a bit even since I’ve been there.

Brian Walters: Definitely. All right. Well, let’s get onto our topic. We’re talking about pre and postnups. Technically, they’re called marital property agreements or whatever other fancy terms. Basically, they’re contracts between two people either before they get married or it could even be in the middle of the marriage that they could do it. Prenup is pre or prior to the marriage and a postnup is after the marriage. Actually, sometimes people do both, but generally it’s one or the other. 

A question I always get is “Is this going to hold up if someone comes to me and says draft one, because why go through it if it’s not going to be enforceable?” Do you want to talk a little bit about the enforceability of these and the things that might make them enforceable or unenforceable?

Karina Rambeau: Sure. I mean, that’s the million-dollar question. And sometimes it is, literally, a million-dollar question.

Brian Walters: Or more.

Karina Rambeau: Or more. If you’re the person that wants a prenup to be enforced there are a lot of things you need to do before that prenup is even signed, and you need to do them the right way and with the right timing.

The two main questions, which is a much deeper analysis than this, but the two questions that are asked are was the premarital agreement signed voluntarily, and that’s typically a fact question. That’s where you get into all the circumstances surrounding the signing of the agreement before the wedding typically, and then the second question is whether that agreement was unconscionable. Unconscionable is typically a legal analysis. Oftentimes, when people are making an argument about one or the other, those get blended. Courts don’t always necessarily separate the two, but really voluntariness is a fact question. Unconscionability is a legal question, and within that every person’s situation before a prenuptial agreement as to how their premarital agreement is signed is different. Then you get into really the nitty-gritty of it, which we’ll probably get into here with a few more discussion points.

Brian Walters: Let’s talk about the two parts of it, voluntary versus not. Now you always have the extreme of, whatever the saying is from The Godfather, either your signature is going to be on the contract or your brains are with someone having a gun to their head. That’s clearly not voluntary. I think we can all agree on that. In fact, I doubt it would ever be that dramatic. On the other hand, we’re all adults. Anybody who signs one of these as an adult, you might or might not want to sign it because of whatever reason. But where is the gray area in that where there’s not a formal threat? Something to your health or life, but it’s maybe somebody is not really that excited about signing it? Where do we draw the line between those, the voluntary and not voluntary?

Karina Rambeau: That can depend, but some of the situations that I’ve come across are closeness in time to the wedding. If the wedding is the next day, although there is a case law that shows prenups have been upheld when they’ve been signed the day before the wedding. The two cases recently where prenups that we handled were not upheld, they looked very closely at timing before the wedding. I think one was four days, one was about a week before the wedding, and they took that as a situation where this person was under too much pressure and they did not either sign this voluntarily or there was some duress involved with that consideration.

Other cases we look at is when there’s a wife signing a premarital agreement that a husband wants signed, and that wife was pregnant. Pregnancy can also influence that. Timing is the biggest thing. From a practical standpoint and a practice tip standpoint, if you are a person who wants a prenup to be signed, you need to be laying down the groundwork for that long before the wedding. You need to talk to a lawyer. You need to be a planner.

Even though they can be upheld, you don’t want to take that chance. If there’s assets and property that you’re trying to protect, you might as well just get this done in advance. It’s just like going to the courthouse and getting your marriage license. These are all things that need to be preplanned, predetermined. If you don’t want to run the risk, why take that chance that a court could say, “Well, this prenup is invalid because it was signed a week before the wedding”. 

Brian Walters: And this isn’t law stuff, this is just practical stuff. If you’re thinking of getting engaged to somebody you should probably have that discussion of “I’m going to want you to sign a prenup”. I also think you should probably talk about the basic terms that basically says, “Our finances will always be separate” something along those lines. If the other person says, “Fine. No problem,” then you should go ahead and get engaged and let’s get them the draft. 

This is a multi-part step. Let’s say your goal is for you to get it signed 60 days before the wedding, which is probably assuming there are no other factors. Also, you don’t want to do it too far in advance because one of the things you have to do is list the assets and density either party has. Usually you have to do that and that might change if you signed a prenup two years before you got married. There could be a big financial change. Then it wouldn’t be accurate anymore at the time of actual marriage which could be an issue.  

You’re going to have to find a lawyer to draft this and it’s going to take a little bit of time. You’re probably going to want the other side to be able to review it with a lawyer, which means they’re going to have to find a lawyer and have it reviewed. Then there may be some revisions and back-and-forth. Most people’s engagements last a year or longer these days. Maybe a year out you should be having that drafted up. Certainly six to nine months out I think would be smart to do. 

When you communicate to the other side, I think you ought to be real clear and stick with it. Let’s say you’re six months out, you give them a prenup and you just basically say, “Look, if we don’t have this signed within two months,” so that’s four months out, “we’re going to call off the wedding.” I think that’s probably reasonable. You don’t want to have it going back and forth up until right before.

We were hired on a case this past week on Tuesday afternoon and they were going to get married on Thursday. Suffice it to say, neither one of those things happened. The prenup did not get signed and the marriage did not happen because that’s just crazy.  There’s just no way you can do that. That was a really complicated matter of set of properties, debts and things. Even if we had managed to get it done and the other side signed it, you’re absolutely right, somebody would’ve been right back in court if they ever split up to challenge it and say, “This was tossed on me at the last second,” so, yeah, I totally agree.

Karina Rambeau: I mean, it goes into the age-old adage of, if you’re going to do something, do it right. That applies to a prenuptial agreement. Once you get into a week or a few days before a wedding, you’ve got vendors, you’ve got guests flying in, you’ve got all these things that could play into eventually flipping that. 

If you’re going to court on a prenuptial agreement someone’s going to want that to stand up and someone’s going to want that destroyed. There’s probably facts that support both sides of that, but unfortunately (or fortunately, depending on what side you’re on), this can be a very fact-heavy analysis, and then you’re putting it in the hands of a judge. One judge may feel a certain way about it being signed a week before the wedding. A different judge might feel a different way about it. 

Brian Walters: Exactly. Well, let’s talk about the judge as you mentioned. Can this question of voluntariness be decided by a judge or a jury? How, or are those your choice?

Karina Rambeau: I believe it can be the choice of a person.

Brian Walters: I think it is also. It’s a fact question like you said. It’s not a question of law. It’s a question of fact, so that sounds like a jury thing. In a lot of counties, the bigger counties, you don’t know which judge you’re going to get until you file something to challenge it. Then you’ll know and then you may get a sense in some of the preliminary hearings, or maybe the judge’s history, in the likelihood around that the judge would be sympathetic to your side – whichever side it is. So then if you think you’re not going to get a fair hearing from this particular judge, you have a right to a jury. You should probably exercise that. I’ve got one where it’s exactly that. On Thursday we got it assigned to trial. We’re going to have a trial on those things and the voluntariness is exactly the issue. 

Karina Rambeau: Brian, if I may interject here. That brings up a very interesting point because I think we as lawyers, we may draft premarital agreements. That’s something we would want to advise our clients on accordingly, but we also may be given a set of facts that we were not the attorneys when this prenup was drafted. We are looking at an agreement that was done by an attorney, hopefully. We’re being given a set of facts that we did not necessarily have control over, but we have to be prepared to argue those facts either to bust the prenup, as they say, or uphold it.

When you get into anything that’s a fact-heavy analysis, then you also have to think about the people who were involved at the time. We’ve had prenups where the lawyer who drafted the prenup is no longer living or practicing and they may not be able to testify. You may have had witnesses at the wedding who can talk about the person who signed the premarital agreement the day before the wedding who could talk about their mental state. That witness may not be available. All of those things are in play, and that just goes back to, if you’re going to do it, do it the right way.

Brian Walters: Yeah, I absolutely agree. This unconscionability, first of all, the purpose of getting a prenup is you want it to be in your favor. Let’s say you’re the high-wage earner or you have a lot of assets. You may want a prenup to protect that in case your marriage doesn’t work out. You are trying to gain an advantage for yourself to the detriment of the person you’re about to marry. That’s allowed. I mean, you’re allowed to act in your own best interest in that situation. You’re not married yet. You don’t have a legal duty to the other side at least with the prenup. 

For unconscionability, let’s use the example that I gave. That is a common type of prenup, which is to say, “I get everything. Whatever I come in with, I leave with. Whatever you come in with, you leave with. Whatever I earn, I keep, and whatever you earn, you keep.” What would be an example or some examples of something that might be unconscionable if you can think of any?

Karina Rambeau: Unconscionability can be a complicated question. Oftentimes, maybe there’s something that the prenup disposes of but that wasn’t necessarily properly disclosed. For example, a lakehouse or something that maybe the spouse who wants the prenup to go away or to be dissolved, didn’t even know about. That’s why if you’re going to do a prenuptial agreement, it covers everything. Because you can also do a prenuptial agreement that just says, “All right, this isn’t disposing of everything. The courts can dispose of this stuff later, but I keep my income, she keeps hers.”

You can do that. If it is meant to be a prenup that disposes of all the property or predisposes of all the property, you need to disclose everything. Because if you don’t and if this becomes a court case or it becomes an issue in the future, you’re going to have to disclose it anyways. Whether it’s part of the divorce or potentially part of the premarital agreement discussion. If it’s getting into an assessment of unconscionability. The best example I can give you is either an asset, a bank account or some money that one spouse didn’t know about, that’s where disclosure comes in. Be honest about it now because you’re going to have to be honest about it later.

Brian Walters: Yeah, I agree. I think it’s the disclosure part. There’s two options under the law. You either need to disclose, and I’m not going to say everything. You probably don’t have to list every piece of pottery that you have, every piece of clothes or something, but generally the bigger items. Or you can opt to, if you both agree it will at least on its face stand to say, “Well, we’ve just waived disclosing it.” To me, that seems like a bad idea to waive the disclosure for exactly the reason you just talked about.

You could imagine some other scenarios where that might be an issue. Let’s say you knew you were going to get a really large inheritance and you didn’t necessarily disclose that because at the time of the prenup, it hadn’t happened yet. In hindsight that might be a significant issue. In that case you might want to disclose it as, “I think I’m going to get a large inheritance in the next 12 months,” or something like that. Just put that in there to be safe. I think it’s a harder argument to make about the unconscionability than the voluntariness, because again you’re seeking an advantage. There’s nothing wrong with that. As long as you fully disclose it, then I think you will not have so many of those problems.

Is there anything else you’d want to add about this? It does sound like it’s something we litigate and we draft these things, so it’s something we’re pretty familiar with. I mentioned this before we started – I personally am seeing a large increase in the number of prenups and postnups that I’m being asked to draft, which I think it’s like drafting wills. There’s a lag until some event happens to trigger it. So maybe 10 or 20 years from now I’m going to get a corresponding number of these people coming back in my office to say, “Well, it didn’t work out and now they’re trying to bust the prenup you drafted for me,” and then we’ll be off to court to uphold it or vice versa. Does anything else come to mind with you?

Karina Rambeau: One of the things that comes to mind is to use modern-day technology to strengthen your prenup agreement. You can videotape. You can record the signing of it. A good, well-drafted prenup should say on the paper, “I understand what I’m signing. I fully understand what I’m signing. I’ve had counsel advise me on this.” But why not take that extra step, almost like it’s a deposition or a court proceeding because one day it might come into being and there might not be people available 20 years later to talk about it. Why not videotape it? Why not document as much as possible? One of the things I learned in school and finishing fairly recently is use technology to your advantage. Talk to your client about it. See if they want to videotape it and if they want to record it. Why leave that to chance?  

Brian Walters: I agree. We should talk about postnups before we switch over to answering some listener questions. Again, postnup is essentially the same concept, except that you’re married already. You’ve got the same test. Is it voluntary? A good example is if, let’s say, you’ve been married 10 years and you suddenly say to your wife, “Look, I want to get a postnup that very much changes the way we’re going to do things if we ever split up.” Is it voluntary? Is there some event that’s occurred that makes somebody more or less likely to sign it? Are you threatening to divorce them if they don’t sign it? Is there another kid on the way, like you said, or something along those lines? I think those would probably be the same thing.

In that one I think you might get into more of an unconscionability argument if you’ve got just a regular, standard agreement that follows Texas law. And suddenly you’re asking your wife to give up all of her rights to all the property and hand it over to you. I think that’s going to be a harder argument to make that’s constable than if it was a prenup. That seems like it to me. Any thoughts on postnups?

Karina Rambeau: Yeah. I had a really good law professor who said, “It’s easier to agree with someone when you’re in love with them than when you’re no longer in love with them.” I’m obviously pro-prenup because there’s more leverage there from that standpoint because it’s either I’m not going to marry you if this doesn’t go through and there’s advantages to that.

Obviously people’s financial landscapes change sometimes after marriage, sometimes very shortly after marriage. As long as that’s still a healthy relationship and you’re not necessarily thinking, “Oh, I want to get divorced this year. Let’s get a postnup signed,” that’s still a conversation that can be had. There may be additional property that you guys want to figure out how that’s disposed of now rather than figure it out when you’re not agreeing with someone. AKA when you’re divorcing someone, you’re mad and there’s other factors like emotion in play.

I think the biggest thing with a postnup is it certainly can be done, but once again it needs to be done the right way. You probably want to use the same attorneys if you were happy with those attorneys. Also follow the same kind of steps in that process of doing it the right way. There’s no problem with it. It’s harder to do. Your leverage is gone, you’re already married, but it certainly can be done.

Brian Walters: Yeah, I agree. There’s some listener questions that we have, so we’ll go through those. I’m going to start. “What happens if I get a prenup in Texas? I get married in Texas and then we move to New York and we get divorced up there? Is it valid?” The answer is it should be. There’s a uniform, basically marital agreement or a prenup proposed statute that all 50 states have passed that says basically, “If you follow these basic steps,” which we’ve already talked about, “then they’ll be valid elsewhere.”

Now, what is different is that other states may have more or less generous alimony statutes, community property or separate property, but generally you’d draft these pretty broadly so they would stand up in other states. The answer to that is yes. If you go to another country, that’s a different question and so on the country it depends on their laws. I have enforced and fought about enforcing out-of-country prenups in the United States, in Texas. That’s a different question, but I think within the states the answer is yes. If it’s drafted properly it should stand up in New York, California, Texas or wherever it is.

Let’s talk about some of the things. There’s several questions about what can be and not be in a prenup.  Which is a really interesting concept because it’s not everything and like you said, it doesn’t have to be the things that can be in there. It could be some, none or just a few of them. Question, “does a prenuptial agreement mean I won’t get alimony?” How would you answer that? 

Karina Rambeau: It certainly could.

Brian Walters: It’s like the classic lawyer answer. “It depends.”

Karina Rambeau: Let me try to unpack this a little bit more. The general rule with a prenuptial agreement is that it can’t go against public policy, so that would typically mean something like you cannot have a prenup agreement that gets rid of a person’s child support obligation. That is a big no-no. That can’t be done, but because alimony or spousal support is something that could involve property, you could have a prenuptial agreement that says, “You’ll only get 2000 a month.” Not what you could get, or you get none. The answer is yes, but again you have to do it the right way. 

Brian Walters: Speaking of different states having different outcomes, that’s a good example of one. What it might look like if let’s say you got married in California and you calculated that you might owe your wife if you got divorced, say $5,000 a month in alimony. You negotiated that in half and said, “I’ll only pay you $2,500.” Then you moved to Texas where you’re probably not going to pay her any. Now, it becomes a bad deal. You have to think about those things a little bit but, of course we sometimes don’t know what’s going to happen.

Okay, another question related to it is about the details in drafting. The question is, “Can I include infidelity in the prenuptial agreement?” I think what that specifically means is can we put terms in there about that. If somebody is unfaithful there would be a consequence or a particular thing that would happen. For example, “Hey, you don’t get any alimony if you cheat on me,” or something like that. Let’s just use that as an example since we just talked about alimony. Is that the kind of thing that can be included in a pre or postnup?

Karina Rambeau: A prenuptial agreement is a contract and I think it could certainly be included, but a court may view that one way or another. I think some courts could say, “Oh, this is not an enforceable term or enforceable clause on this contract.” Some courts may say, “Okay, you built an infidelity clause in there and this is what it is.”

Brian Walters: I think it’s less of an issue these days, but there’s an issue of proving it. Now you’ve got to prove whether it happened or not. Also what if there was a point in time where someone claimed, “We had an open relationship and you said that was fine” or “You did it first” or whatever. There are a lot of different ways. This actually gets back to an important issue. I try to encourage people when I’m drafting them to make these things simple. The more complicated they get with, “If this happens, then here’s the consequence.” You’ve got all these different things. It’s really complicated and you’re asking yourself to get into litigation about that stuff if your marriage comes apart.

One of the nice things about a prenup or postnup that is clearly enforceable and well-drafted is that you don’t need to spend a lot of time and money on lawyers fighting about things. At least money-related because they’re clearly answered within this. But then if you start making them very complicated, you get problems. So the short answer is, yeah, you can include provisions about infidelity. I usually discourage it though just because of the complexity issue.

Our next question, which is really a common question and I’m glad this person asked it. It’s important. It says, “My fiance and I plan to have children. Can I include in the premarital agreement provisions related to custody and child support and child’s expenses?” Surprisingly, the answer is no. We just talked about how this is a contract between adults. You can do what you want to. Well, the difference here is that there’s children involved. Children always have to go through a court order. A court has to do a best-interest-of-the-child analysis, at least in Texas and from what I can tell in every other state.

The court can’t take that. They can’t just say, “Mom has custody.” Well, why? Because it says it in the prenup because that might not be in the child’s best interest. What if mom has become a raging alcoholic who passes out all night and you’ve got a newborn? You’re not going to put a child with the mom in that case. That would not be in the child’s best interest, so I wouldn’t put it in there.  

I have seen people put things in there that say, “If we ever split up, it’s our intention that if this happened or that happened that we co-parent equally,” or that mom has custody or whatever. You can put your general feelings in there, but it’s not enforceable in a court. Maybe you could use it in court to argue, “Well, this is what we’ve always said. We were going to do it 50/50.” But the court’s not bound by it and probably the further you get away from that document being signed, the less likely a judge is even to consider it, if they were going to anyway. The more that happens the less it would make sense. It can include kids, at least not anything binding in there. And because it’s not binding I tell people, “what’s the point of putting it in there?” It’s not going to have any effect and it’s probably going to cause another argument. Another thing to argue with your soon-to-be spouse, and for what purpose? 

Karina Rambeau: Sometimes people just want that in there to feel better. I agree with you. I think the simpler the better because the more complex something gets, the more you leave that up to interpretation of the fact-finder. That could be a judge or it could be a jury.

Brian Walters: Absolutely. All right, one more question from our listeners. I got this one the other day. I had somebody call me up through another lawyer in LA who had recommended and sent him to me. I just texted him and we got on the phone. Right before we got on the phone just to talk about it preliminarily, he said, “Oh, I’m going to merge in my fiance.” I was like, “Wait a second.” 

Let me tell you what the question is. The question is, “My fiance and I both agree that we want a premarital agreement and we know what we want in it. Can we use the same lawyer for our premarital agreement?” No. That is the same answer as, “Can we use the same lawyer to do our divorce even though we’ve agreed on everything?” By the way, that’s a really good question and it makes sense that you could, right? For example, “We agree. What’s the big deal? We agree on getting divorced. Why can’t we save money and just have one lawyer do everything?” Well, the answer is that the lawyer themselves has a conflict and can’t do it. I guess you could find an unethical lawyer, but I don’t recommend that. As lawyers we’re not allowed to represent two people who have their interest in conflict with each other.

Now, if somebody came to me and said, “Look, I want to adopt. I want my new husband to adopt our child,” I think I could probably do that for both of them. I’d probably have the soon-to-be adoptive dad sign something saying, “I know I don’t have to do this and I might have to pay child support,” all that other stuff, but generally I could do it. Even if you still agree on things like what we said at the beginning, the premarital agreement or the postmarital agreement is to gain an advantage over the person you’re about to marry. That’s not necessarily a bad thing. It just is what it is, but when that happens we lawyers have a duty to our clients to do what’s in their best interest. 

If the agreement of these two folks was the wife is the higher wage earner, she’s going to keep all of her money and she’s got all these assets, and the husband’s going to just not earn as much probably or be a stay-at-home dad and he’s fine giving all that up, well, that’s in our client’s best interest if we represent the wife. In the husband’s we would be saying, “Dude, that’s not. You’re really going to regret this someday, I suspect.” We can’t be in that position to do it. Speaking about unenforceable, I would think that would probably on its face be a real problem with having it be enforced, plus problems for the lawyer that decided to do that.

Karina Rambeau: Yeah. I think it just goes to the general sense of if both people have attorneys when a prenup is being signed, I think that helps with the enforceability of it. If you’re trying to protect hundreds of thousands or millions of dollars of assets, spend the money to get the other spouse an attorney.

Brian Walters: A hundred percent, pennies on the dollar. You may never need it. If you do, you’ll be glad that you did spend that money. If you don’t need it, fine, you have peace of mind and you’re good. 

All right. Well, we’ve gone a little longer than projected, but that’s because there’s a lot to this topic. As I said, it’s becoming an increasingly important part of our firm’s practice. I suspect that will continue, so we’re trying to keep people informed. All right. Well, that’s all we have for today. If you like what you’ve heard today, please do us a favor and leave a review. We appreciate all feedback especially when it helps us better the podcast. If you have any follow-up questions on this episode or would like to talk to one of us directly about your family law situation, reach out to us at or you can just contact us directly through our website which is I’m Brian Walters here with Karina. Thank you for listening.

Karina Rambeau: Thank you.

For information about the topics covered in today’s episode and more, you can visit our website at Thanks for tuning in to today’s episode of For Better, Worse, or Divorce where we post new episodes every first and third Wednesday. Do you have a topic you want discussed or a question for our hosts? Email us at Thanks for listening. Until next time.