Prenuptial agreements seem to be staging a bit of a comeback. While for many years, the idea of asking a proposed marital partner for a legal agreement that contemplated the ending of the relationship prior to death was considered unromantic at best, and incredibly tacky at worst, there seems to be more acceptance of the idea recently. This may be due to millennials being more likely to cohabitate before marriage and being more likely to see finances as separate rights, rather than something to collectivize.
Whatever the reason, with the use of prenuptial agreements becoming more frequent, it may be a good idea for Texas couples to understand when such agreements are valid, and when they are not. Of course, like many legal contracts, prenuptial agreements need to be in writing, but unlike most other contracts, they can be entered into without the legal concept of 'consideration,' which requires each party to receive something of value.
Even if the formalities of a prenuptial agreement are observed, however, there are certain circumstances in which they may not be enforceable if the marriage comes to the point of divorce. The two basic reasons such an agreement might be unenforceable is if the party against whom it is being enforced did not sign it voluntarily, or if the agreement was unconscionable when it was signed, and some other conditions applied as well. These other conditions include that the party against whom the agreement is being enforced did not receive full disclosure of the financial situation of the other party, did not waive that disclosure, and did not have a reasonable opportunity to know the financial situation of the other party.
What constitutes 'unconscionability' in these cases will be determined by a judge as a matter of Texas law. When parties look to sign premarital agreements, it may be a good idea to take these facts into consideration. Full disclosure of financial positions will go a long way to not only a solid prenuptial agreement, but also, perhaps, to the couple not having to use such an agreement at all.