Prenuptial and Postnuptial Agreements in Texas

Texas law decides what happens to your property if you divorce or die, unless you and your spouse decide differently in writing. Prenuptial and postnuptial agreements let couples set their own rules. They aren't only for the wealthy. They're common for people marrying later in life, people with children from earlier relationships, business owners and anyone who wants clarity about money.

Here's how these agreements work in Texas and what makes them hold up.

Prenuptial (premarital) agreements

A premarital agreement is a contract signed before the wedding that takes effect when the couple marries. Texas has adopted a version of the Uniform Premarital Agreement Act, found in Chapter 4 of the Family Code. The basic requirements are simple: the agreement must be in writing and signed by both parties. No separate payment or exchange is required.

What a prenup can cover

• Each spouse's rights in property, whenever and wherever acquired.
• The right to buy, sell, manage and control property.
• How property will be divided on separation, divorce or death.
• Whether income from separate property, or even salaries, will be separate or community.
• Modifying or eliminating spousal support.
• Making a will or trust to carry out the agreement.
• Ownership of life insurance death benefits.
• Which state's law governs the agreement.
• Other personal rights and obligations that don't violate public policy or criminal law.

What a prenup can't do

• It can't adversely affect a child's right to support. Child support is the child's right, not the parents' to bargain away.
• It can't violate public policy or criminal law.
• Custody and visitation are decided on the child's best interest at the time, not by a prenup.

Postnuptial agreements

"Postnup" isn't a term the Texas Family Code uses, but it's how people describe agreements signed during the marriage. Texas allows two main kinds.

Partition and exchange agreements

Spouses can agree to partition (divide) community property into each spouse's separate property, or exchange one spouse's community interest in some property for the other spouse's interest in other property. Spouses can also agree that income from separate property will be separate. Couples use these to:

• Protect a business from a future divorce.
• Clarify ownership after an inheritance or a large financial event.
• Work out estate planning goals, especially in blended families.
• Reconcile after a separation by setting clear financial rules.

Agreements to convert separate property to community

Spouses can also go the other direction and agree to convert separate property into community property. These conversion agreements have their own formal requirements, including specific disclosure language, and should be drafted carefully.

A partition agreement can change the character of property going forward, but it can't be used to defraud existing creditors. And anything that affects real estate may need to be recorded to protect against third parties.

When is an agreement enforceable?

Texas courts generally enforce marital agreements. The spouse who wants to avoid one has the burden to prove a defense. Under Texas law, a premarital or marital property agreement is not enforceable if the challenging spouse proves either:

1. They didn't sign voluntarily, or
2. The agreement was unconscionable when signed, and, before signing, that spouse:
   • was not given a fair and reasonable disclosure of the other's property or financial obligations;
   • did not voluntarily and expressly waive, in writing, any right to disclosure beyond what was given; and
   • did not have, or reasonably could not have had, adequate knowledge of the other's property or obligations.

Whether an agreement is unconscionable is decided by the judge as a matter of law. Notice that unconscionability alone isn't enough. It has to be paired with a lack of disclosure. That's why good agreements usually attach financial disclosure schedules.

Making your agreement hold up

A few practical steps make an agreement much harder to challenge:

• Start early. Signing a prenup the night before the wedding invites a claim that it wasn't voluntary. Give both people time to read, ask questions and negotiate.
• Disclose fully. Attach lists of assets, debts and income. More disclosure is better.
• Get separate lawyers. Texas doesn't strictly require each party to have a lawyer, but independent counsel for each person strongly supports voluntariness and understanding. One lawyer can't represent both of you.
• Use clear language. Ambiguous terms lead to lawsuits.
• Consider language access. If one spouse is more comfortable in Spanish or another language, make sure they truly understand what they're signing.
• Keep it reasonable. An agreement that leaves one spouse with nothing at all may draw scrutiny, especially if disclosure was thin.

Changing or revoking an agreement

After marriage, a premarital agreement can be amended or revoked only by a written agreement signed by both spouses. Verbal changes and "we stopped following it" generally aren't enough. Ask about updating your agreement after big life changes such as having children, starting a business or receiving an inheritance.

Agreements and divorce

In a divorce, a valid agreement controls the property issues it covers. Anything it doesn't cover is handled under the normal rules for separate and community property and the court's just and right division. If the agreement limits or waives spousal support, it can affect claims for maintenance. See alimony in a Seguin, Texas divorce.

Marital agreements also connect to estate planning. A prenup or partition agreement often works best alongside an updated will. See our page on wills in Seguin.

Getting help

Attorney Jesus R. Lopez prepares and reviews premarital and marital property agreements for couples in Seguin and throughout Guadalupe County, and represents spouses when an agreement is challenged in a divorce. Flat fees and free consultations are available in English or Spanish.

Frequently asked questions

Have questions about your situation? Talk with a Seguin divorce lawyer. Consultations are free, by phone or in person, in English or Spanish.

Related guides

This article is general information about Texas law, not legal advice for your situation. Laws change, and every case is different.