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The Common Law

Getting Married - What About a Prenup?

By Meghan Griffiths, March 30, 2007, Columns

Can I enter a prenup in Texas?

Yes. Texas has constitutionally recognized prenuptial agreements ("prenups") since 1980, and they are generally enforced. For the most part, consenting adults about to marry in Texas can do what they want with their property. While most couples enter prenups to avoid a dispute over property in case of divorce, prenups can be useful for dividing property upon death or separation or some other event; to govern whether a spouse can sell or mortgage property during the marriage; or, to protect children born outside of the contemplated marriage. Talk to a lawyer about the many uses for prenups you may not have considered.

The two basic requirements of a prenup are: 1) the agreement has to be in writing; and 2) signed by both parties. The agreement also must have been entered into voluntarily by both parties, and the agreement cannot be unconscionable. Both voluntariness and unconscionability are concepts that have been the subject of many lawsuits by soon-to-be divorcees seeking to back out of their prenups and are beyond the scope of this article. Both parties should talk to their own lawyers to avoid problems.

Not all prenups are presumed valid. Though Texas recognizes common-law marriage, no one knows for sure whether a prenup between common-law spouses would be recognized. Prenups that violate any criminal law are not valid. Prenups that violate public policy are also void. For example, if a prenup is signed with the intent to defraud creditors of one or both spouses, or if the prenup adversely affects child-support obligations, the prenup is likely void as a violation of public policy. Finally, if you do not honestly disclose your assets prior to signing the agreement and your spouse finds that out later, your prenup could be invalid.

Prenups can be legally and emotionally complicated. Both prospective spouses are urged to retain their own lawyers (not the same lawyer) before signing one. As a practical matter, be fair, be careful, and be educated. Be precise about what you want the agreement to accomplish. Common sense and fairness can likely avoid major disputes later.

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