Prenuptial Agreements and Divorce

You and your spouse drew up a prenuptial agreement before taking that long walk down the aisle. Now that you’re thinking of getting a divorce, you’re wondering what you can expect to happen when you bring the document forward and seek its enforcement or abrogation.

A premarital agreement is a contract that prevents the creation of community property. In Texas, community property is subject to a “just and right” division.  The 50% rule does not exist. This means that assets can be divided according to a 70/30 or some other percentage split.

What the court cannot do is divest an individual of his or her separate property. This means that a husband and wife can contract that the property owned by one or either of them will remain separate.  This can also include the income derived from that separate property. Under community property laws, that income would normally be considered  income held in common. This also applies to anything purchased without income.

All of this is to say that a prenuptial agreement can address any property issue that might arise in context of a divorce. However, only the court can decide on matters pertaining to child support.  Furthermore, the Texas Family Code stipulates that this kind of an agreement must be in writing. It must be signed and dated by both parties and goes into effect on the date of marriage. Amendments can be made in writing anytime afterwards.

A pre-nup becomes null and void if the party against whom enforcement is requested is able to prove that:

  • the document was signed under coercion,
  • the agreement itself was unconscionable when it was signed,
  • he or she was not provided a reasonable and fair disclosure of the other individual’s property or financial obligations,
  •  he or she did not voluntarily waive any right to disclosure of said obligations in writing,
  • he or she did or could not have had full knowledge of those obligations.

No matter how carefully you prepare for the possible end of a marriage, life and its attendant complications happen. And when it does and you find yourself  unsure of how to proceed, that’s when you need to contact the Barrera Law Firm. Our attorneys are experts in Texas divorce law and can help you sort through any issues pertaining to a prenuptial agreement. When protecting your rights and assets matter, we’re there.

Photo credit: David Castillo Dominici
CALL NOW