What is a Prenuptial Agreement and is it Enforceable in Court?

Prenuptial agreements or premartial agreements are contracts a couple signs prior to marriage.  These agreements can deal with many different kinds of issues such as making sure that separate property assets are preserved as separate property during the marriage.  Prenuptial agreements can also be used to prevent the creation of community property during the marriage so that all property earned or purchased during the marriage is separate property.  A premarital agreement can also provide for spousal maintenance (alimony) in a divorce.  On the other side of that coin, these agreements can be used to block or prevent the payment of spousal maintenance if the couple divorces in the future.

A couple can also enter into this kind of an agreement after they are married.  This is called a postnuptial or postmarital agreement.  Whether the agreement occurs before or after marriage, they are often referred to generally as marital agreements.

Texas law favors the enforcement of marital agreements.  To be enforceable, a marital property agreement must be in writing and signed by both parties.

Marital property agreements are presumed to be enforceable in Texas.  The party opposing enforcement of the agreement has the burden of proof to establish that the marital property agreement is not enforceable and to defeat the agreement.

A marital property agreement is not enforceable if the party challenging the agreement proves that:

  • the party did not sign the agreement voluntarily; or
  • the agreement was unconscionable when signed.  This means that the party challenging the agreement must show that she:
    1. was not provided a fair and reasonable disclosure of the property;
    2. did not waive the right to disclosure; and
    3. did not have adequate knowledge of the property.

Preparing a prenuptial agreement or post-nuptial agreement that will be enforceable in Texas courts is a technical and complicated task and is best accomplished with the guidance of experienced divorce lawyers.  Call Diana Larson today at 713.221.9088.

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