Prenuptial and postnuptial agreements in Texas
A Texas prenup, which the law calls a premarital agreement, is a written contract two people sign before marriage that sets their property rights if the marriage ends or one of them dies. It takes effect when they marry. Couples who are already married can sign a marital property agreement (often called a postnup) to change how some of their property is treated. Both kinds are governed by Chapter 4 of the Texas Family Code.
Planning ahead is an act of care
Bringing up a prenup can feel awkward. Many people worry it means they expect the marriage to fail. In practice, it is often the opposite. It is two people talking openly about money before money becomes a source of conflict. There's no substitute for being prepared, and that is as true before a marriage as it is at the end of one.
Scott Rewak is Board Certified, Family Law — Texas Board of Legal Specialization, and he studied accounting before law school. He helps people across Dallas, Collin, Denton and Tarrant counties understand and put in writing how their property will be treated.
What a premarital agreement is
Texas follows a version of the Uniform Premarital Agreement Act, found in Chapter 4, Subchapter A of the Texas Family Code. The basic rules are plain:
- It must be in writing and signed by both people (Tex. Fam. Code §4.002).
- It takes effect on marriage (§4.004).
- After the marriage, it can be changed or revoked only by another written agreement signed by both spouses.
What a prenup can cover
Texas law gives couples a lot of room (Tex. Fam. Code §4.003). A premarital agreement can address, among other things:
- Each person's rights in property, whenever and wherever it was acquired.
- Whether income from separate property, or earnings during the marriage, will be separate or community.
- How property will be handled, managed and divided if the marriage ends.
- Changing or eliminating spousal support.
- What happens to property at death, and life insurance.
Without an agreement, Texas community property rules apply. Property acquired during the marriage is generally community property, and that includes wages earned during the marriage. A prenup lets a couple decide some of those questions for themselves. To see how the default rules work, read property division.
What a prenup can't do
A premarital agreement may not adversely affect a child's right to child support (§4.003(b)). Child support is the child's right, and parents can't sign it away in advance. A prenup also can't violate public policy or a criminal law. Custody of future children is decided on the child's best interest at the time, not by an agreement signed before the children were born.
When a court may refuse to enforce one
Texas law lists the grounds for setting aside a premarital agreement (Tex. Fam. Code §4.006). In general, it is not enforceable if the person challenging it proves either:
- they did not sign it voluntarily, or
- it was unconscionable when it was signed, and before signing they were not given fair and reasonable disclosure of the other person's property and financial obligations, did not voluntarily waive that disclosure in writing, and did not have, and could not reasonably have had, adequate knowledge of them.
The burden is on the person challenging the agreement. That is why the process of signing matters almost as much as the words on the page. Full financial disclosure, enough time to review the agreement before the wedding and each person having their own lawyer are common ways couples try to make an agreement hold up. Whether an agreement will be enforced depends on the facts.
Postnups: marital property agreements
Couples who are already married can also sign agreements about their property. Texas calls these marital property agreements, and they are covered in Subchapters B and C of Chapter 4. In general terms:
- Spouses can partition or exchange community property, turning some or all of it into each spouse's separate property.
- Spouses can agree that income or property arising from separate property will be separate.
- Spouses can agree to convert separate property into community property. Texas has specific formal requirements for this kind of agreement, including a written, signed agreement with a clear, prominent statement about the effect of the conversion.
People sign postnups for many reasons: after an inheritance, when starting a business, after a financial setback, or to put in writing what they meant to do before the wedding but never did.
Who often considers one
- People who own a business, or expect to.
- People with significant savings, real estate or retirement accounts before marriage.
- People who expect an inheritance, or who want to keep family property in the family.
- People marrying again, especially with children from an earlier relationship.
- Couples where one spouse plans to step away from a career.
For business and executive-compensation questions in a divorce, see high-net-worth divorce.
If you already have a prenup and are facing divorce
An existing agreement often shapes the whole case. The first questions are usually what it actually says, whether it covers the property at issue and whether either spouse plans to challenge it. Bring a copy to your consultation.
Questions people ask
Does a prenup have to be notarized in Texas?
The Texas statute requires a premarital agreement to be in writing and signed by both parties. Couples often have signatures notarized for other practical reasons. Ask about what makes sense for your agreement.
Can we sign a prenup a week before the wedding?
Timing is one of the facts a court may look at if someone later says they did not sign voluntarily. Starting well before the wedding gives both people time to review, ask questions and get their own advice.
Can a prenup decide custody or child support?
No. A premarital agreement can't adversely affect a child's right to support, and custody is decided on the child's best interest when the issue comes up.
We're already married. Is it too late?
No. Texas allows marital property agreements between spouses, which can partition community property or address income from separate property, among other things.
Do we each need a lawyer?
The statute does not require it, but separate counsel for each person is a common way to help show that each signed voluntarily and understood the agreement.
