How to get a prenuptial agreement in Texas

A prenuptial agreement in Texas is a contract signed between a soon-to-be-married couple. The agreement explains how property and financial obligations, debts, and other significant assets will be handled in case the marriage ends. Just as business owners protect their business assets via business contracts, many couples in the Lone Star State decide to protect their personal rights and interests via a prenuptial agreement. 

If you aren’t sure if a prenup is right for you and your future spouse or want to learn about Texas prenup laws, consider this your ultimate guide. 

Prenuptial agreements in Texas

A prenuptial agreement might be the secret ingredient for a good marriage. Prenups encourage honest communication about finances and reduce stress and uncertainty around “what ifs” that life may bring. 
Drafting a Texas prenup requires careful consideration. Otherwise, the document won’t pass muster in court. If you’re serious about getting a valid prenuptial agreement in Texas, here’s all you need to know. 

What is a prenup?

A prenup is a written contract between prospective spouses. It is also known as a prenuptial or premarital agreement. The document details each partner's personal rights and responsibilities in the event of a divorce, legal separation, or death. 

Both parties need to sign the legal document before your marriage is official (the day you get your marriage license). The Texas prenup takes effect the day of the legal wedding.

Who should have a prenup? 

Debating whether a prenuptial agreement in Texas is right for you? Here are some circumstances where getting a premarital agreement might be beneficial: 

• You or your partner have previously been married. If you’ve been through a tough divorce and felt short-changed by a previous partner, a prenup will help you secure your financial future and rights with your future spouse. 
• You or your partner have children/grandchildren from previous relationships. If you or your future spouse has a child from a previous relationship, a prenuptial agreement can protect the child’s financial interests and give them ownership over assets intended for them. For example, one partner can include terms such as “Child A will get their inheritance rights in case of death.” 
• You or your partner own a business. A divorce can impact your business interests. Without a prenup, your spouse could claim ownership rights to your family business even if they didn’t actively contribute to it. A premarital agreement can secure the continuity and stability of your business.
• One spouse is financially better off. If you have significant financial assets and property (inheritance, stocks, savings, real estate) or earn more than your future spouse, a Texas prenuptial agreement will help you control property and keep those valuable assets as your personal property. Those assets will not be up for grabs if the marriage ends in divorce. 
• One spouse has significant debt and liabilities. Typically, premarital debts (debts taken out before marriage) are borne by the person who took out the debt. But over the years, financial lines can blur. To save yourself from instances where you end up paying for your partner’s debt, a prenup is a good idea. It gives you adequate knowledge about your financial future. Married couples can also establish who will be responsible for the debts accumulated before and during the marriage. 

Have more doubts about whether a prenup is right for you? It’s highly advisable to consult an experienced family law attorney and make an informed decision. 

Texas prenups

The Texas Family Code, Chapter 4, governs the laws and requirements around prenuptial agreements in Texas. This Texas law has statutes imposing what makes the prenup valid and legally enforceable. 

What does a prenup cover? 

Per Texas prenup laws, a married couple can include the following provisions in their prenuptial agreement:

• Ownership rights, usage, and transfer of marital property 
• Spousal maintenance or alimony 
• Debt allocation
• Dispute resolution methods
• Benefits from life insurance policy
• Retirement accounts
• Infidelity clauses
• Future financial plans
• Payout of death benefit
• Inheritance rights 
• Making of a will
• Handling of certain expenses
• Splitting of household responsibilities
• Parenting duties

Prenuptial agreements in Texas can’t include clauses that:

• Limit or hamper child support
• Specify child custody rights
• Violate public policy
• Encourage divorce
• Force one partner to commit illegal acts

Talk to a family law attorney to get more information about all the topics a premarital agreement in Texas can and cannot cover. 

Prenups and child custody

The Texas Family Code explicitly states that a prenuptial agreement can’t include conditions concerning child custody, child support, and visitation rights. What does this mean? In simpler terms, it means that spouses can’t decide to say, “We won’t provide child support” or “We will only give X amount in child support” in the prenuptial agreement. 

Texas courts will decide child custody and financial support arrangements based on the best interest of the child at the time of divorce or legal separation. The child support amount is commonly decided using a formula based on the higher-earning parent’s income. 

It’s important to understand the limitations Texas statutes impose because any attempt to include child-based clauses in the prenuptial agreement will make it invalid. Any other terms that negatively impact a child will also be deemed unenforceable. 

Prenups and spousal support

Texas prenup laws do allow the inclusion of spousal support or alimony provisions. Alimony is the amount of financial aid the higher-earning partner might have to provide the other party in the event of a divorce. 

You and your future spouse can include the following provisions in the prenuptial agreement: 

• Set the amount of alimony that will be provided by one party
• Expressly waive the right to alimony 
• Establish the duration of spousal support (10 years, 20 years, etc.)
• Decide on circumstances that will allow modification of spousal support 
• Divide assets as community property or separate property 

One thing we do want to highlight is that Texas is a community property state. Usually, any asset or property acquired by a married couple is defined as community property or marital property. Any assets (houses, cars, etc.) owned before marriage are considered separate property and will remain with the original owner. 

If you don’t address property rights in your premarital agreement, then Texas courts have the decision-making authority. They consider things such as the length of marriage, earnings, and needs of each party. In the event of a divorce, they will use these various factors to determine how to split any property owned.

Making prenups enforceable

Texas follows the Uniform Premarital Agreement Act (UPAA). For a Texas prenup to be enforceable and legally binding, it must ensure fairness and meet the following requirements: 

1. Voluntary execution: Both spouses must have willingly decided on the terms and not faced any pressure or force. 
2. Fair and reasonable disclosure: For a prenup to be enforceable, both spouses must have provided full disclosure of assets and debts. Prenuptial agreements in Texas become invalid if one partner has not provided reasonable disclosure of their financial status or has purposely hidden property. 
3. The agreement is written and signed. Both parties have voluntarily signed the written premarital agreement in Texas before marriage. Texas law doesn’t accept verbal agreements. 
4. Terms are fair and reasonable. One spouse can challenge the terms in court if the agreement is one-sided or puts the other party at a significant disadvantage. 

Can I write my own prenup in Texas? 

Yes, you can write your own prenuptial agreements in Texas. But going the DIY route might not be the best way to proceed. There are several legal nuances that you might overlook that can come to haunt you later. 

Work with a family law attorney to avoid any surprises. An experienced attorney can draft a valid prenuptial agreement that best represents your circumstances and financial goals. They can also assist you in making other arrangements if there is a disagreement or conflict of interest. 

How to update a prenup?

Drafted a prenup and feel that it no longer represents your best interests? Luckily, it is possible to make updates if the document hasn’t gone into effect (you are yet to be married). Modifying the prenuptial agreement involves negotiating new terms. Then, you have to agree to the updates and sign the new written agreement. The new agreement must state that it overrides the older version.

What if you want to change the prenup after marriage? You can do this by drafting and signing a written postnuptial agreement. These legal documents are also known as marital agreements or marital property agreements. 

Getting a valid marital property agreement is a tricky process. It’s best to enlist the help of an attorney who has adequate knowledge in the field of divorce and family law to guide you. 

How to terminate a prenup?

You can terminate a valid prenuptial agreement. Both spouses need a new written agreement stating that the old prenuptial agreement has been terminated. Both spouses must sign the new agreement voluntarily.

No force or pressure can be used.

How long before a wedding should a prenup be signed in Texas?

There is no Texas law governing when a prenup should be signed. But, we recommend that the final draft be reviewed at least 30 days before the marriage is official. This prevents the other party from claiming they were forced or pressured into signing because the marriage date was close. 

How much does it cost to get a prenuptial agreement in Texas?

Prenuptial agreements can cost you anywhere from a few hundred dollars to $10,000.

The cost of drafting a prenuptial varies. This is because the costs depend on several factors, like the complexity of the terms, the attorney’s experience and fees, location, and how open to negotiations you and your future spouse are.

Why say yes to a prenup

You might believe that thinking about a prenup before marriage is a bad omen, but it isn’t. In reality, and when written correctly, prenups help prospective spouses. They put a married couple on the same page concerning their financial future and provide a clear framework to navigate unexpected challenges.