For a “lone star state” prenup to be considered for enforcement in a Texas courthouse, it must be drafted under specific guidelines that include:

Your prenup could be a risk if you include any of the following provisions:

>>For the entire fine print, review Citation: TX Fam Code §7

Texas law places the burden on the challenging party to show why the Prenuptial Agreement should not be enforced. In Williams v. Williams, as detailed below, signing an agreement one day prior to marriage is not enough to render the agreement unenforceable.

Case: Williams v. Williams, 720 S.W.2d 246

Summary: Wife, Linda and Husband, Louis were married April 17, 1982, in Boerne, Texas. The parties had spent significant time together and had traveled together before marrying.  Both parties had children from former marriages. During the late afternoon on the day before the couple’s wedding, Louis presented Linda with a premarital agreement, also known as an “Agreement in contemplation of marriage.” Louis reminded Linda that he had discussed this agreement with her prior, and per their discussions was sure she would have no objection. Linda indicated she did not like the agreement, but because approximately twenty of their friends and family had been invited to the wedding and were set to arrive the next day, she agreed to sign it. Linda and Louis went to a bank and had their signatures to the agreement notarized.

To make a long story short: According to the appeals court in Williams, the fact that the Premarital Agreement was signed one day before the couple’s wedding did not render the agreement unconscionable. The Texas Appeals Court held that a Prenuptial Agreement signed on the day of the marriage was not attained through fraud, duress or overreaching in this case. The court reasoned that the wife had business experience and the couple had discussed the terms of the agreement for six months prior. The prenup was upheld.

Case: Moore v. Moore, 383 S.W.3d Summary: In the case of Moore, Wife presented evidence that before she married Husband, he misrepresented his financial situation and claimed he wanted her to sign a Premarital Agreement to protect her from “loans, liens, and lawsuits.” Husband first attempted to use his own lawyer to assist them to write the agreement in a “collaborative effort.” Husband then suggested Wife retain an attorney and agreed to pay the cost, but thereafter rejected any attorney wife identified for representation, and rather directed her to hire an attorney of his choosing. He then thwarted efforts by Wife’s attorney to review the Prenuptial Agreement draft until just hours before the couple’s wedding. The Prenuptial Agreement presented to Wife required her to verify Husband had provided full disclosure of the nature, extent, and value of his assets, and also required her to waive any further disclosure. Wife was unable to reach her attorney before signing. The Court held that this agreement was involuntary and therefore unenforceable due to the facts at hand.

Does not having an attorney render the Prenuptial Agreement unenforceable?

Case: Marsh v. Marsh, 949 S.W.2d

Summary: In Marsh, the court ruled that the fact that Husband was not represented by an attorney did not mean that the agreement was procured by fraud, duress or overreaching. The Husband had opted not to hire counsel despite it being recommended that he do so.  

Does the “unfairness” of the terms of a Texas Premarital Agreement weigh into whether it is considered “unconscionable?”  

Case: Chiles v. Chiles, 779 S.W.2d

Summary: The Court in Chiles held that the one-sided nature of a Prenuptial Agreement does not equal unconscionability, and that even though an agreement may be disproportionate, unfairness is not material to the enforceability of the agreement.

Is inadequate financial disclosure enough to make a Texas prenup unconscionable?

Case: Marsh v. Marsh, 949 S.W.2d

Summary: According to the Marsh case, if the court determines that a Premarital Agreement is unconscionable, the contesting party must also prove that, before signing the agreement, they were not provided fair and reasonable disclosure of the finances, property or financial obligations of the other party. This disclosure is required in Tex. Fam. Code §4.006(a)(2)(A).