Ask a Divorce Lawyer: How Are Prenups Handled in Divorce Cases

You probably weren’t thinking about getting divorced when you signed a prenuptial agreement. However, now circumstances have changed and it’s something you need to consider during your divorce proceedings. You want to be sure it protects you, your children, and your assets. You can talk through this with your divorce lawyer in more detail, but we’re going to discuss how prenuptial agreements are handled during divorce proceedings in Texas.

Can My Divorce Lawyer Enforce My Prenuptial Agreement in Texas?

Texas’s Uniform Premarital Agreement Act ensures most prenuptial agreements are enforceable during divorce proceedings. However, some circumstances must be met before you can solidly say your prenup is valid in the eyes of the court. If you work with Houstons top family divorce lawyer, then they’ll be able to help you prove these circumstances were met.

How Can U Lawyer Make Sure My Prenuptial Agreement Is Enforceable?

Your prenuptial agreement must be in writing. It also needs to be an agreement made “freely, fairly, willingly, understandingly, in good faith, and with full disclosure.”

Essentially, the above means the circumstances surrounding a prenup must have met the following conditions upon signing:

• You and your spouse had separate lawyers
• There was substantial time between the signing and your wedding
• You disclosed all of your assets to each other
• You both had full knowledge of your legal rights
• You both had equal positions for bargaining

Are There Any More Requirements for Enforcing the Prenup?

There’s a further requirement for your prenuptial agreement to be valid in the eyes of the court when you’re getting divorced. It needs to be “conscionable.” This means the terms laid out in it must be fair. For example, your prenup won’t be valid if one party in the divorce gets almost everything, and the other spouse gets almost nothing.

What Happens If My Prenuptial Agreement Is Not Enforceable?

If you and your former spouse are treating each other amicably during the divorce proceedings, then you shouldn’t have a problem with the non-enforceable prenuptial agreement. It could serve as a guide for the courts to follow as best they can during the divorce. However, if one party contests part of the agreement or changes their mind about something in it, then the courts cannot enforce what was previously agreed upon and will have to reconsider it.

You should note that Texas is an equitable distribution state. This means your property and assets will be divided fairly, although they may not be divided equally. For example, if one spouse earns significantly more than the other, then they may be awarded more of the marital assets as they likely paid for more of them. However, pre-marital assets will, in most cases, be given to the party who owned them before entering into the marriage.

What Happens if My Former Spouse Changes Their Mind About What’s in the Prenup?

If your prenuptial agreement is seen as valid by the courts, then your ex-spouse will not be awarded more than they agreed to take in the prenuptial agreement. If the prenuptial agreement is not valid, the court will evaluate whether or not your spouse is fairly entitled to whatever they’re requesting. If they’re fairly entitled to what they’re asking for, then they may be awarded it based on the equitable distribution law in the state.

Circumstances vary on a case-by-case basis, so your attorney will be able to advise you further.

Why Might My Prenup Be Seen as Invalid in the Eyes of the Court?

1. You Had No Legal Advice

If one or both parties created and signed the prenup without legal counsel, then the prenup will be seen as invalid. Such matters always need to be witnessed and weighed in on by an attorney from both parties.

2. You Were Coerced

It’s difficult to prove coercion or coercive control, especially several years down the line. However, if you can prove that you were coerced into signing a prenup you didn’t agree with, then you may be able to get it thrown out. If your ex-spouse was coerced into it, they can also do this.

An example of proven coercion is written communication (such as text messages) stating the wedding would be canceled if the coerced party didn’t sign the agreement. Witnesses that can testify the coerced party signed the prenup while under the influence of alcohol or drugs is another example of proven coercion.

3. It Was Improperly Filed

If your agreement was found to be filed improperly filed or hastily drafted, then the court may consider it invalid. All legal documents must be handled in very specific ways for them to hold up in court.

Even if your prenuptial agreement isn’t considered valid, the court may still adhere to what is laid out in it. If the prenup isn’t followed, then equitable distribution will be used to handle the division of property and assets. The rest of the discussions, such as custody of your children and children from previous relationships, will be separate matters to discuss with your family divorce attorney.