If a Premarital Agreement is not executed correctly, it may not be enforceable at the time that it is needed most. Texas property laws are complicated, and so are the laws regarding the execution and enforceability of premarital agreements.
In 1993, the Texas Legislature changed the law to say that there are now only two ways in which a party can invalidate a premarital agreement:
- prove it ways signed “involuntarily” ; or
- prove it was “unconscionable” when it was signed and, before signing the agreement, prove:
- you were not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
- you did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
- you did not have, or reasonably could not have had, adequate knowledge of the property or financial obligations of the other party.
Before 1993, a party could also use “common law defenses” to the enforceability of the premarital agreement such as fraud or duress, but now a party can not. However, the two terms–involuntarily and unconscionable–are packed with meaning. Several Texas appellate courts have written pages and pages on how those terms are defined and how they apply in the context of a premarital agreement.
Whether or not your Premarital Agreement is valid and enforceable will be dependent upon many critical facts. It is not enough to simply say that it exists and it was signed by the both parties. If you are thinking about executing a premarital agreement, be sure to have a competent family law attorney assist you with the drafting and execution of the document. If you are going through a divorce in which a Premarital Agreement exists, it is absolutely critical to have an attorney review the document and also discuss the facts and circumstances surrounding its execution.