The Rationale For A Prenuptial Agreement

Marriage is love and a contract. Once the love is gone, all you have left is the contract. As a family law specialist certified by the Texas Board of Legal Specialization, I can help you draft a prenuptial agreement and protect your rights under such an agreement in the event of divorce.

There are a myriad of reasons why people want to have a prenuptial agreement or "prenup." Many people who are entering into second marriages use prenuptial agreements to protect the rights of children from a prior marriage or the separate property acquired in the first divorce. People also use prenuptial agreements to document the separate property they are bringing into a marriage. (However, if they transform the property after marriage — for example, use separate money to buy a boat — they will have to trace the property to prove that it is separate or agree to stipulate to the character of the property as separate.) People also use prenuptial agreements to spell out their understanding on such issues as to what church their children will attend.

A prenuptial agreement is a document that allows you to contract around Texas law. For example, under the Texas Constitution, interest earned on separate property is community property. However, you can stipulate otherwise in a prenuptial agreement. You also can specify that the money you earn during your marriage is your separate property rather than community property.

Is A Prenup Valid?

There are several ways a spouse can undo a prenuptial agreement. For example, the agreement can be voided if:

  • One side was not represented by an attorney of his or her own choosing, making the entire signing suspect.
  • There was overreaching.
  • There was fraud.
  • There was duress (for example, if your spouse said he or she couldn't get married without first signing the agreement).

As a lawyer who drafts prenuptial agreements regularly, there are several things I do to make the agreements enforceable. One way to do that is to fully ratify the prenuptial agreement. This overcomes the issue of duress. Another way is to draft a partition and exchange agreement after marriage if the parties are still amenable to signing a partition and exchange agreement.

If a prenuptial agreement is contested, the burden of proof is on the person trying to undo it.

Get Legal Counsel Today

Contact me today to speak with a board-certified family law attorney about prenuptial agreements. I serve clients in Houston, Texas, and all surrounding communities.