What Is a Prenuptial Agreement?

A prenuptial agreement is a legal document that a couple puts together before their marriage, determining what might happen if the marriage doesn’t last. That can include things such as the division of assets and debts, name changes upon marriage, who will be responsible for specific expenses, what might be done if the marriage is in difficulty (such as undergoing marriage counseling or mediation), and whether or not the couple will have joint or separate bank accounts.

While it seems contrary to approach marriage by talking about what happens if the marriage dissolves, developing a prenuptial is actually a great way for a couple to have deep discussions about finances and values so they can understand where each comes from. This can prevent future surprises and disagreements.

How Does Having a Prenuptial Agreement Affect Asset Division During a Divorce?

One major factor that’s affected by having a prenuptial agreement is that Texas is a community property state. That means that marital property is usually divided evenly in a divorce. That may be far from ideal for one or both spouses. Having a prenuptial can legally determine which assets are considered marital property and which remain separate, even if that means they’re not divided evenly.

In other words, without a detailed prenuptial, one spouse could enter a marriage with a significantly higher level of assets than the other. However, if they divorce and those assets are determined to be marital property, they could be divided evenly because there was no prenuptial specifying otherwise.

What Does It Take to Create a Legally Enforceable Prenuptial Agreement?

Drawing up a legally valid prenuptial agreement isn’t as simple as making two columns on a sheet of paper with each spouse’s name at the head of a column. There are requirements in Texas that must be followed, or the court could override the prenuptial. This is why it’s crucial to work with an experienced prenuptial agreement attorney who understands the requirements and can guide you past any pitfalls. (It should also be noted that while Texas doesn’t require both spouses to have separate attorneys, it’s highly recommended to avoid concerns about one spouse coercing the other into signing an agreement they disagree with.)

Here are some of the situations that need to be addressed.

Financial disclosures. Texas law requires both spouses to provide what it calls a “fair and reasonable disclosure” of their financial assets and debts. There are numerous ways to do this, but it should never be ignored. The failure of one spouse to disclose either significant assets or significant debts could lead to the prenuptial being unenforceable.

No unacceptable provisions. There are provisions that are common and expected, such as the division of assets and debts or steps to take if the marriage suffers difficulties. However, there are also provisions that aren’t considered enforceable under Texas law and shouldn’t appear in the prenuptial. Those include:

  • Child support. A prenuptial cannot determine whether or not either parent would be from paying support for any children born into the marriage.
  • Unlawful requests. Any requirement in the prenuptial that either breaks the law or violates public policy is unenforceable.
  • Not unconscionable. This means that the agreement shouldn’t be weighted heavily in favor of one spouse and against the other.
  • Voluntary. The prenuptial must be in writing and signed by both parties voluntarily. If one or the other experienced coercion or undue duress to sign it, the courts can void it.

It should be noted that even if the majority of the prenuptial appears valid, if the courts find that any of these aspects are present, they have the right to override the entire agreement.

Can Prenuptial Agreements Ever Be Changed or Amended?

Yes. If both spouses agree that changes need to be made, they can have their attorney(s) draw up the changed document and submit it to the court. Both spouses must be in agreement on the changes for the amended agreement to be valid.

There are several good reasons a prenuptial may need to be changed after marriage, including:

Significant changes in financial conditions. One or both spouses either earn more or lose income, whether from a lost job or by developing an unexpected disability. Or the spouses may acquire new assets of value (including an inheritance) that need to be addressed in the prenuptial.

Birth of children. This may affect the role each spouse plays in the marriage (such as one spouse giving up a career to stay home with the child), and the prenuptial should be changed to reflect that.

Starting a business together. Adjusting the prenuptial is a good idea when it’s not just personal finances involved but business entities, too.

Change in state laws. It may not happen often, but there are times when state laws change in ways that could affect the existing prenuptial.

If you’re unsure if your reasons for wanting to change your prenuptial are legally valid, be sure to contact your prenuptial agreement attorney.

What Should I Do if I’m Getting a Divorce, and We Have a Prenuptial Agreement?

Call the Cutrer Law Group at 817-813-8513 for a case evaluation. We understand that this can be a delicate situation requiring tact and empathy. However, we also understand how valuable the discussions are in determining the prenuptial’s creation. While you hope never to use it, it can be invaluable if it is. Our team of experienced, knowledgeable prenuptial agreement attorneys can help you determine the best approach for yours.