The Texas Family Code sets out the requirements for a valid, enforceable premarital agreement (aka “prenup”). Most importantly, premarital agreements need to be in writing. Oral or verbal agreements are not recognized. Some states require a notarized agreement, but Texas does not.
Second, the prenuptial agreement must be executed before the parties get married. A whole new set of rules applies to agreements that are entered into after the marriage takes place.
Third, both partners must fully disclose their assets and liabilities. Most premarital agreements waive any disclosure that isn’t contained in the document. The risk for failing to fully disclose assets and debts is that a court could later void the agreement due to lack of disclosure if challenged. Premarital agreements frequently alter a person’s property rights under existing law either in the event of death or divorce, so a party can only fairly evaluate the effect of the property rights he or she is being asked to release if a full disclosure of the property and debts is provided.
Each party must represent their own interests and, preferably, have independent attorneys representing each of them. It is unethical for one lawyer to represent both parties in a premarital agreement.
Most importantly, each partner must sign the prenuptial agreement voluntarily. An agreement that was not voluntarily signed is unenforceable and will be voided by a court upon a challenge to the premarital agreement either on death or divorce.
The agreement cannot contain provisions that limit child support rights. A couple cannot agree that one spouse will not seek child support. A court is likely to strike out any adverse limits relating to child support.
For help in drafting your prenup, contact the Texas board certified attorneys at O’Neil & Attorneys.