Premarital agreements are seen as a safety net for engaged couples in case something goes wrong. Negotiated before they say “I do,” the contract sets out how property will be divided in the event of divorce. If one spouse is wealthier than another, it often protects that property from going to the poorer party.
Guidelines for premarital agreements are found in the Texas Family Code. Prenups are presumed valid. This means that a spouse who wants to fight a prenup has an uphill battle without legal representation. However, courts in Texas have established situations where all or part of a prenup can be thrown out, especially if it does not meet technical requirements, was not signed voluntarily, or is unconscionable.
According to state legislation, a premarital agreement must be in writing and signed by both parties. This makes it different from other contracts, since an oral agreement alone is not considered a valid prenuptial agreement. At the same time, unlike other kinds of contracts, consideration (the transfer of something of value from one party to the other) is not necessary to bind spouses to a valid prenup. Any prenup not properly signed or filed may be thrown out by a court.
Even a signed premarital agreement may be challenged if one of those signatures was not voluntary. In cases where the document was signed under duress, undue influence or fraud, it might be deemed involuntary. This is a fact-based determination, looking at whether both parties had all relevant information and were not in a position of great vulnerability before agreeing to the contract.
If a premarital contract favors one party over the other, it may be found unconscionable by a court, but only if there was no disclosure or waiver of that disclosure. It is not enough, therefore, that one spouse may lose out significantly if an agreement is enforced. That spouse must also have not received enough information about what was at stake and not waived his or her right to know.