Prenuptial and Postnuptial Agreements

Most people seem to know what a prenuptial agreement, “prenup”, is, but many are not aware that you can make property agreements after a couple says “I do,” in the form of a postnuptial agreement, “postnup”. The primary difference between a postnuptial agreement and a prenuptial agreement is that prenups are written before a marriage and postnups are written during a marriage. Both agreements are contracts for the future division of property between a couple. Prenuptial and postnuptial agreements are particularly relevant to residents of Texas because the state does not recognize legal separation unless made formal through divorce. Having an agreement in place that divides assets on your terms may relieve some of the stress commonly accompanying a new marriage.

Texas Family Code section 4.002 requires that a prenuptial agreement be in writing and signed by both parties. Furthermore, the two contracting parties do not need to exchange money or property for a valid prenuptial agreement to take place.

Postnuptial Agreements

Texas Family Code Sec. 4.102 allows “at any time, the spouses may agree that the income or property arising from the separate property that is then owned by one of them, or that may thereafter be acquired, shall be the separate property of the owner.”

Challenging a Prenup or Postnup

Texas Family Code section 4.002 requires that a prenuptial agreement be in writing and signed by both parties. Furthermore, the two contracting parties do not need to exchange money or property for a valid prenuptial agreement to take place.

What Can Be Agreed to in a Prenuptial Agreement?
Texas Family Code section 4.003(a) specifies what can be in the contract:

• The rights and obligations of each of the parties in any of their 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 a criminal penalty.

What Cannot Be Included in a Premarital Agreement?
A premarital agreement cannot adversely affect a right of child support. In other words, the parents cannot agree through a premarital agreement to a reduced amount of child support. Additionally, a prenup can’t contemplate possession and access or conservatorship for children.

Are Premarital and Postmarital Agreements Enforceable?

A court will enforce a premarital or postmarital agreement unless it is proven that the party did not sign the agreement voluntarily, or the agreement was unreasonable. If the contract was unconscionable, one must also prove that, before signing the agreement, the signing party:

• Was 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.

Proving that an agreement was not signed voluntarily requires a skilled lawyer who understands the details of the case, the current case law on these issues, and how to present those details to a judge or jury. Our attorneys have experience not only in analyzing cases but also in effectively advocating for our clients in court.