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Five reasons a prenuptial agreement may not hold up in court

As wedding season gets underway, you may be reminded of that blissful time before your wedding, when the future was bright and hopeful. Now, sadly, that time is long gone, and you may be worried about the impact of a prenuptial agreement on your divorce proceedings.

In general, Texas law seeks to honor the provisions of a well-crafted prenup, as we discussed last week. However, there are also several reasons why your prenuptial agreement might fail in court. Here are five of them.

1. It isn't legally valid.

Prenups are only enforceable in Texas if they were put into writing and signed by both people before the wedding date. This may seem obvious, but it happens. While some states recognize verbal prenuptial agreements, Texas does not.

It also may raise questions if you were handed the prenup literally days or even hours before your wedding. Maybe you were told you could sign it later, but to be enforceable, it must have been signed before you said, "I do."

2. It contains fraudulent information.

As with marital property division, engaged couples must fully disclose any and all assets and liabilities (debts) when creating a prenuptial agreement. If your soon-to-be ex-spouse misrepresented their income or business earnings, hid secret accounts from you, or suppressed the amount of debt they owed at the time of your marriage, any resulting agreement you signed could be deemed invalid.

3. It was signed under pressure.

Prenuptial agreements must be entered into voluntarily. Your fiancé(e), his or her parents, or any other party (like the family lawyer) cannot force you to sign a prenuptial agreement. If you were pressured to sign a prenup - or threatened if you didn't sign it - it could be thrown out in a divorce.

4. It tries to get rid of child support.

By Texas law, parents cannot waive their obligation to pay child support through a prenuptial agreement. Any clauses that seek to limit or eliminate child support will likely be struck down.

5. It contains clauses that are 'unconscionable.'

This is often where most fights about prenuptial agreements occur (besides being pressured into one, as discussed above). If the court believes that the terms of your agreement are unduly lopsided, it may invalidate the agreement. For example, theoretically you could have agreed to outrageous terms like:

  • Giving your spouse all of the assets and taking on all of the debt in the event of divorce
  • Waiving your right to exercise any control over your marital financial affairs
  • Agreeing to give up your career when you had children
  • Allowing your in-laws to have oversight of your financial affairs

These are extreme and unlikely examples, but ones that illustrate the kinds of terms that could cause a judge to reconsider the validity of the entire agreement. Essentially, if the terms unnecessarily privilege one spouse's financial security over the other's, it could be grounds for dismissal.

As with many legal arguments, you must be able to prove that you did not voluntarily or knowingly agree to these terms when you signed the prenup to have them thrown out. Your lawyer can help you assess the impact of your prenuptial agreement on your impending divorce, and advise you accordingly.

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