Prenuptial agreements, or prenups, are unique legal contracts that only take effect once a marriage occurs. Because they involve sensitive and complex provisions, they must be carefully drafted to avoid invalid terms that could render the agreement unenforceable. For this reason, prenups should always be prepared and reviewed by an experienced Texas family law attorney—not just a general contract lawyer—to ensure the document complies with the law and protects both parties.
Common Provisions in a Texas Prenup
Texas recognizes the legality of prenuptial agreements, also known as premarital agreements, under the Uniform Premarital Agreement Act (Tex. Fam. Code §§ 4.001, et seq.). The Act sets forth both the formalities for executing prenuptial agreements – a written document signed by both parties – and addresses the provisions that courts may and may not enforce. In general, Texas prenups can legally address the following matters (Tex. Fam. Code § 4.003):
- Rights and obligations of each party as to separate property
- Marital (community) property rights and obligations
- Property management and control
- Distribution rights upon divorce, separation, death, or another triggering event
- Spousal maintenance
- Wills and trusts
- Life insurance death benefits
- Choice of law governing the agreement
- Any other socially acceptable matter
Notably absent from these enforceable provisions are those related to marital relationships, parenting, and children. You should consult with an experienced prenuptial agreement lawyer in San Antonio if you wish to address any child-related or parenting concerns legally.
Terms That Cannot Be Enforced
Section 4.003(b) of the Act explicitly prohibits the parties from including any provision that can negatively impact a shared child’s right to child support. This means you cannot agree to accept a lesser amount of child support on behalf of a current or future shared child. You can, however, generally agree to provide additional child support beyond state guidelines. Furthermore, you cannot generally agree on child custody in a prenuptial agreement. Child-related matters are nearly always governed by the best interest of the child standard, rather than the parents’ wishes before marriage.
Understanding Provisions Violating Public Policy
In addition to child support and custody provisions, the law prohibits the parties from contracting on any matter that violates public policy or criminal law. The parties may not agree to structure certain assets in a manner that evades taxation unlawfully, for example, as this would involve potential criminal activity. Likewise, the parties may not generally include provisions permitting or guaranteeing certain sexual rights, including extramarital affairs.
This violates public policy and, thus, Texas premarital agreement laws, even if the parties have an understanding. Only an experienced Texas prenup lawyer can review the case law related to these sensitive issues to determine whether the courts will enforce these provisions or void the agreement.
Contact an Experienced San Antonio Prenup Attorney
Unique laws govern the drafting, execution, and challenge of premarital agreements in Texas. Do not draft a prenuptial agreement on your own, as prenuptial agreements containing specific unlawful provisions may be unenforceable. Always work with a dedicated family law firm to discuss and draft your prenuptial agreement under the state’s premarital agreement laws. Schedule a prenup consultation with our family attorneys today. Call (210) 740-0281 or contact us online.