Texas is a community property state. When couples divorce, it’s generally assumed that everything they have acquired since their marriage began is supposed to be shared – and divided – equally.
However, there are exceptions to that rule, and one of them involves situations where a premarital agreement (a “prenup”) is in play. If you are headed for divorce and you’re worried that old prenup won’t stand up in court, here are the main concerns:
Was there voluntary consent?
Prenuptial agreements have been found to be invalid when there was a lack of voluntary consent by one of the parties. Generally speaking, if your spouse had ample time before the wedding to review the contract and engaged their own legal counsel, that’s an indication that they were not coerced into signing.
Was your financial disclosure complete?
A prenup requires full and fair disclosure of your assets and liabilities. Otherwise, your spouse agreed to a fiction. As long as you fully disclosed all your financial affairs (or obtained an explicit, written waiver of disclosure from your spouse), you won’t run afoul of this issue.
Is the agreement reasonably fair?
Courts can and will void a prenup as “unconscionable” if its terms are excessively tilted in one party’s favor. If your prenup leaves your spouse with nothing of your marital assets while you take everything, for example, that could be considered unjust.
Does it violate public policy?
Prenups can cover all kinds of situations, including the rights to spousal property, dispute resolution methods, the effect of an extramarital affair on the property division and more – but they cannot contain illegal provisions or provisions that violate public policy. For example, no prenup can limit a child’s right to receive child support, since that’s the right of the child – not your spouse’s rights.
If you’re nervous about your prenuptial agreement, it may be smart to get legal guidance that’s specific to your situation.