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TEXAS PRENUPTIAL AGREEMENTS
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TEXAS PRENUPS ARE MORE POPULAR TODAY THAN EVER.
A TEXAS PRENUPTIAL AGREEMENT IS A CRITICAL TOOL TO HELP COUPLES TO PROTECT AGAINST THE HARSH CONSEQUENCES OF THE STATE'S DEFAULT COMMUNITY PROPERTY AND ALIMONY LAWS.
Texas Prenuptial Agreements are written contracts that couples sign prior to marriage that allow them to decide on and control their marital rights. When a Texas couple gets married without a written premarital agreement, they have basically agreed to have their rights determined by a default set of marital and divorce laws that they might not understand, and which may not suit their needs and goals.
In contrast, a written prenuptial agreement signed before marriage allows spouses to take control of their destiny in the unfortunate event of separation and divorce by pre-negotiating the path of least resistance and what is in the best interest for both parties.
Importantly, you must have sufficient “nexus” to Texas to justify having a Texas prenuptial agreement (for example, at least one party lives or owns property in Texas, and/or you are getting married in Texas).
TEXAS PRENUP LAWS
Prenups in Texas are expressly allowed by the Texas Constitution and the Uniform Premarital Agreement Act (the “UPAA”), which sets forth the requirements for entering into a legally enforceable Prenuptial Agreement in the Lone Star State. Both the Texas State Constitution and the UPAA specify the terms and content that can and cannot be included in a Texas premarital contract.
The marital laws of the State of Texas make it the ideal state to sign a Prenuptial Agreement before getting married – and a practical necessity for many people – for a couple of reasons.
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On one hand, the community property laws set forth in the Texas Constitution, Article XVI, Sec. 15 and the Texas Family Code are so draconian that they drastically limit a married person’s ability to acquire separate property while married. The default laws provide that virtually everything received while married (except property received by inheritance or gift) is community property (i.e., jointly owned). Moreover, it is extremely difficult to get a court to award post-divorce maintenance (referred to as “alimony” in most states).
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On the other hand, Texas has embraced Prenuptial Agreements by giving couples the ability to take control their marital rights in the Texas Constitution, and by adopting a very user-friendly version of the UPAA.
In sum, the Texas marital laws make signing a prenup critical for many couples to preserve their financial independence and autonomy during marriage, and the Texas Constitution and UPAA make it easy to satisfy the legal requirements to enter into a legally binding and enforceable premarital agreement.
ARE TEXAS PRENUPS ENFORCEABLE?
Texas is an extremely favorable jurisdiction for Prenuptial Agreements because Texas courts have established a strong bias in favor of enforcing prenups time and time again. The precedent established by Texas caselaw makes it clear that prospective spouses can freely enter into premarital agreements that replace the default marriage laws and allow them to take control over their marital rights. The Texas Supreme Court has recognized that parties shall have the utmost liberty of contracting, and that their contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by courts. In re Marriage of I.C. & Q.C., 551 S.W.3d 119, 124 (Tex. 2018)
Thus, spouses who have a Texas prenup can truly rely on the courts to enforce it if written and signed in compliance with Texas law. Texas divorce courts have repeatedly confirmed that "Texas law generally favors premarital agreements"(1), and that "public policy dictates that premarital agreements should be enforced."(2) In Texas, "premarital agreements are presumptively enforceable"(3), and courts interpret premarital agreements like other written contracts. Moreover, the Texas supreme court has cautioned that courts should "rarely find a contract unenforceable on public policy grounds" and that "[p]remarital agreements are no exception."(4)
(1) In re Marriage of Sauls & Worley, 648 S.W.3d 359, 364 (Tex. App.-Texarkana 2021, no pet.) (quoting Larson v. Prigoff, No. 05-99-01755-CV, 2001 WL 13352, at *1 (Tex. App.-Dallas Jan. 8, 2001, no pet.) (mem. op.))
(2) Beck v. Beck, 814 S.W.2d 745, 749 (Tex. 1991)
(3) Grossman v. Grossman, 799 S.W.2d 511, 513 (Tex.App.--Corpus Christi 1990, no writ).
(4) In re Marriage of I.C. & Q.C., 551 S.W.3d 119, 122 (Tex. 2018)
DID YOU KNOW...?
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Under §4.005 of the Texas UPAA, a prenuptial agreement can be amended to change its terms mid-marriage (or revoked entirely) if both parties agree. However, any changes to a prenuptial agreement must be in writing and signed by both spouses to be enforceable and binding. See also Hughes v. Hughes, 13-15-00496-CV (Tex. App. (2017).
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A Texas premarital agreement is a private contract between a marrying couple, and no one else. A Texas prenup does not get filed with any local, state or federal agency, and couples often choose to keep the terms confidential.
FLAT-FEE TEXAS PRENUP PACKAGE - $1,395.00
WHAT'S INCLUDED:
Cost of TX Prenup
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PRENUP PLANNING CONSULTATION. Your attorney will schedule a call with you to explore the terms to include in your prenup that will best fit your needs, and answer any questions you may have. This conversation is a critical part of the process because your input is what allows us to draft a custom agreement for your specific situation.
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FAST TURNAROUND. Your draft will be completed and sent to you for review within 5 business days after we get all of the information we need to prepare your customized premarital agreement.
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PRENUP REVIEW CONSULTATION. After you and your fiancé have had the opportunity to read and discuss your prenuptial agreement, you will schedule a follow-up call with your attorney. During this call your attorney will answer any questions, make sure you understand the document, and discuss any changes that may be needed.
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PRIVACY. The information you share and everything you discuss with your attorney is protected by the attorney-client privilege.
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A CUSTOMIZED, READY-TO-SIGN PRENUP. Your attorney will make any changes needed to finalize your prenuptial agreement based on the follow-up call, and send it to you for signature.
Mediated Prenup Cost
FLAT-FEE TEXAS MEDIATED PRENUP PACKAGE - $1,695.00
WHAT'S INCLUDED:
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PRENUP PLANNING MEDIATION. Your Prenup Mediator will have a call with both partners to explore the terms to include in your prenup, and we will openly discuss options and the pros and cons and legal effects of various approaches. Through this collaborative mediation process, both of you will have the opportunity to provide your input and voice your concerns and you will work together towards a prenup that works for both of you. The mediation conversations are confidential and are a critical part of the process because, your input is what allows us to draft a custom Mediated Prenup agreement for your specific situation.
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FAST TURNAROUND. Your draft will be completed and sent to you for review within a few days after we get all of the information we need to prepare your customized premarital agreement.
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PRENUP REVIEW CONSULTATION. After you and your partner have had the opportunity to read and discuss your prenuptial agreement, you will schedule a follow-up call with your mediator. During this call your mediator will answer any questions, make sure you understand the document, and discuss any changes that may be needed.
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PRIVACY. The information you share and everything you both discuss with your mediator is strictly confidential.
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A CUSTOMIZED, READY-TO-SIGN PRENUP. Your mediator will make any changes needed to finalize your prenuptial agreement based on the follow-up call, and send it to you for signature. We will also provide detailed instructions on how to properly execute the final prenup and what to do with it after. If either party wants us to send the agreement to their independent legal counsel for review and/or to make changes, we will be happy to do so.
TEXAS PRENUPTIAL AGREEMENT TERMS
What do couples usually cover in a Texas Prenup?
The terms of a prenup agreement are very personal. There is not a “one size fits all” standard Texas prenup agreement template that will work for every couple. Every couple getting married is unique, with different goals and needs.
From a big-picture perspective, the content and terms of Texas prenups are generally driven by a couple’s desire to “opt out” of certain default Texas laws that would otherwise determine their marital rights, and which might lead to fighting in the event of a divorce.
Texas premarital agreements are usually written to allow a couple to agree on marital rights and divorce terms that:
(1) Supersede the Texas marriage laws that automatically make them lose the financial independence that they enjoyed (and are used to) before marriage; and
(2) Replace and pre-resolve the divorce laws that create unnecessary conflict that often forces spouses to lawyer up and battle it out in court.
Below are some specific examples of the terms that people usually address in Texas Premarital Agreements.
ALLOWING SPOUSES TO HAVE SEPARATE PROPERTY THAT STAYS "SEPARATE" DURING MARRIAGE
Texas Family Laws make almost all property jointly owned “community property”.
People use Texas Prenups to provide each spouse the freedom to have “separate property” like they could prior to marriage.
The default community property laws in Texas provide that all property acquired during the marriage is automatically presumed to be community property that is jointly owned by a married couple, except for assets that a spouse can prove by “clear and convincing evidence” falls within the extremely limited definition of “separate property”. (TX Fam Code §3.003)
The definition of what constitutes a spouse’s "separate property" under the default Texas laws could be characterized as draconian because it is strictly limited to:
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Property owned by the spouse before marriage;
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Property inherited or received as a gift during marriage; and
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Money received from personal injury claims during the marriage, payment for loss of earning capacity.
All other property that is acquired during marriage is Community Property.
However, prospective spouses can use a prenuptial agreement to eliminate the community property presumption and enable them to have the freedom to acquire and own property that stays “separate property” throughout the marriage under §4.003 of the Texas UPAA. (See also In re Marriage of Nash, 644 S.W.3d 683, 694-95 (Tex. App.-Texarkana 2022, no pet.))
For many marrying couples, one of the biggest concerns they have about getting married is that the moment they say “I Do”, their financial lives will be inextricably intertwined in ways they didn’t want or even expect. Most people are used to being able to buy themselves things they need or want, paying their own bills with money they earn, and having the financial freedom that single adults enjoy. Many people don’t want their financial autonomy to suddenly disappear the moment they tie the knot, and would rather be able to ease into marriage remaining in complete control of how quickly—and to what extent—they blend their financial lives with their future spouse. For those individuals, a Prenuptial Agreement affords them the ability to get married without having their financial reality suddenly become blended with their partner’s by the automatic co-mingling of assets and earnings that would otherwise occur under the default community property laws.
Accordingly, a popular use of a Texas Prenup is to keep each spouse’s Separate Property separate during the marriage, completely free from any marital claims. A couple can also choose to keep income and debt resulting from separate property separate, as it was prior to marriage.
COUPLES USE TEXAS PRENUPS TO DECIDE WHAT PROPERTY WILL BECOME JOINT PROPERTY & HOW THEY WILL OWN IT
In Texas, spouses who do not have a written prenuptial agreement have their separate and community property divided by the divorce court “in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.” TX Fam Code §7.001.
The court will not automatically split the marital estate evenly (50/50) because the court will divide and allocate the couple’s separate and community property between them in a way that the court decides is fair based on special circumstances, guidelines and factors under TX Fam Code §§7.002-7.009. In a nutshell, divorcing spouses have the right under default Texas laws to prove to the satisfaction of the court how much and what portion of the marital estate they should leave the marriage with, and why. Texas’ default property division process forces couples to leave the division of their assets in the hands of the court, which can lead to hostility and conflict among a divorcing couple. While the divorce lawyers may benefit from high billable hours fighting these issues out in court, the spouses are forced waste their savings and possibly go into debt to pay exorbitant legal fees at a time when they need to preserve what wealth they have more than ever.
Texas’ Constitution and its Uniform Premarital Agreement Act enable couples to agree on how to divide their marital property. Today, it is increasingly common for couples elect to enter into written premarital agreement that avoids the need to ever have a divorce court divide their marital estate under §§7.001-7.009 of the Texas Family Code – providing the couple the peace of mind of having certainty as to their property rights at all times during the marriage.
Many couples “pre-agree” that it is in their best interests to have a written prenup that would divide their joint property evenly (50/50), rather than risking an expensive and emotionally draining court battle over the marital estate. However, Texas prenups often include specific terms relating to major assets that spouses may purchase together during marriage, such as real estate. For instance, a Texas prenuptial agreement might split all of a couple’s marital property 50/50, except for real estate they purchase together which gets divided pro rata, according to each spouse’s percentage of contributions to the real property.
WHETHER THEY CAN ASK FOR MAINTENANCE IF THEY DIVORCE
The right to receive maintenance (also frequently called alimony or spousal support) after a divorce is another major topic that couples frequently address in a written prenuptial agreement. The default laws under Chapter 8 of the Texas Family Code makes it very difficult for a divorcing spouse to obtain an award of post-divorce maintenance/alimony.
For the most part, under TX Fam Code §8.051 a court can only award maintenance be paid to a spouse if that spouse:
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Doesn’t have enough property to provide for his/her “minimum reasonable needs”; AND
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Is unable to earn sufficient income to provide for his/her “minimum reasonable needs”.
Moreover, the default Texas law automatically presumes that maintenance should not be awarded unless the spouse trying to get maintenance can show that he/she has been diligent in (i) trying to earn sufficient income to provide for his/her minimum needs, or (ii) developing the necessary skills to earn sufficient income during the divorce process.
However, §4.003(a)(4) of the Texas UPAA allows couples to agree on a wide variety of maintenance terms, providing certainty as to their rights and obligations in the unlikely event their marriage is terminated by a divorce.
It is very common for Texas couples to enter into a premarital agreement under which they completely waive the right to receive maintenance/spousal support. However, many people are pleasantly surprised to learn that a Texas Prenup Agreement can actually guarantee the right to payment of some minimum amount of maintenance if the marriage is dissolved (for instance, a lump sum payment of $40,000 upon divorce, periodic payments of $3,000/month for 3 years, etc.).
Sometimes couples choose to allow — but limit — the amount of maintenance available to either of them in the event of divorce, so that each party knows their “worst case scenario” if things don’t work out. Some couples agree to allow a spouse who is unemployed at the time of separation leading to divorce (e.g., a stay-at-home parent situation) to seek some pre-agreed amount of maintenance, but otherwise waive the right to seek any spousal support if both are employed.
For the most part, a couple entering into a prenup in Texas can freely agree to whatever maintenance/alimony terms make them comfortable to enter the marriage, given their unique personal situation. Omitting spousal support terms from a prenuptial agreement just leaves the spouses to rely on default state laws in the event of divorce, which can lead to the need to lawyer up and argue over maintenance in court. Couples who agree on pre-defined alimony payment terms in their Texas Premarital Agreement can enjoy peace of mind that enables them to embark on the wonderful roller coaster of marriage with more confidence, optimism and excitement because they know that they will be on the same page during even the toughest of times.
SUMMARY
A divorcing couple that entered into a Texas Prenuptial Agreement has a contract that provides certainty as to their rights, minimizes conflict, hostility, and legal costs. A well-drafted prenup is like a roadmap that helps both spouses find the path of least resistance and conflict amidst the emotional turmoil of the separation and divorce process. Signing a written premarital agreement also provides some certainty as to their marital and divorce rights under Texas law.
IMPORTANT: There are many other terms that are typically included in Texas Prenuptial Agreements beyond those premarital concepts introduced above. The above list of concepts commonly included in Texas premarital agreements is not at all exhaustive and is for example only.
If you are engaged to be married and interested in learning more about Prenuptial Agreements in Texas, please accept our invitation to schedule a free consultation with a Prenup Pros attorney or mediator 1-6 months before your anticipated wedding date.
SHOULD WE CONSIDER A
TEXAS PRENUP?
Unfortunately, many marriages don’t have a fairytale ending. According to analysts and attorneys:
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41% to 50% of first marriages end in divorce
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60 to 67% of second marriages end in divorce
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About 74% of third marriages fail
Responsible adults routinely prepare for disasters as an obvious part of their everyday lives, but they generally protect against catastrophic events that have less than a 5% chance of occurring. With the chances of a “marital disaster” approaching 50% or higher, it might be worth at least considering the pros and cons of a TX prenup.
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