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Prenuptial agreements and your divorce

If you entered into a prenuptial agreement, you need to know how its provisions can affect the course of your divorce proceedings.

Signing a prenuptial agreement can be a good way to protect your finances in the event of a future split. While the law generally wants people to have the freedom of choosing what to agree on, there are some areas where courts are unlikely to enforce prenups.

Prenups must be in writing

First of all, in order to have legal force, a prenup must comply with Texas requirements for validity. The agreement must be in writing, although it does not have to be notarized. The parties must sign it before the marriage; marital agreements belong to a different legal area with different rules governing them.

Total financial disclosure

The parties to a prenup must completely disclose their financial situation to one another, including all assets and liabilities. If it later turns out one party withheld relevant information, the court may deem the agreement invalid.

Voluntary agreement

As with other types of contracts, the parties must sign voluntarily. Generally, this means there must not be coercion or deception in getting someone to sign.

Prenups can determine many financial issues

Typically, prenuptial agreements cover potential financial and property issues should a divorce arise. They may, for example, stipulate that certain streams of income are separate property throughout the marriage, even if ordinarily the law would deem them community property. An agreement can provide for a specific division of assets or have a spouse waive any potential right to spousal support.

Provisions courts are unlikely to enforce

Texas courts will typically refuse to enforce provisions which are against the law or public policy. Notably, this means a prenup cannot limit child support. Courts also tend not to enforce provisions concerning visitation or custody issues. When dealing with matters relating to children in a divorce, courts generally look to the best interests of the child, not the interests of the parents or their previous agreements.


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