You may have signed a prenuptial agreement back in the days when the possibility of divorce seemed far removed from reality. Now, as you confront the imminence of divorce, you may wonder how the provisions in your prenup will affect important issues such as spousal support and property division.
Potential issues concerning a prenup can include questions of technical validity, fairness and interpretation of various provisions. Having an attorney review your document can help you better understand its effect on your divorce.
Texas requires a prenuptial agreement be in writing and that both parties sign it before the marriage. Like other contracts, a prenup may not obligate a party to do anything illegal. A prenup’s provisions may also not contravene public policy. For example, a court is highly unlikely to uphold a provision that eliminates child support. However, generally, a prenup can contain provisions for spousal support and property division that do not align with statutory provisions for these matters.
A prenup that appears valid can still face challenges if a party alleges his or her signature was not voluntary. Unconscionability can also provide grounds for invalidation. Either of these grounds can be difficult to prove.
When it comes to a signature on a prenup, courts tend to use a fairly strict interpretation of voluntariness. Psychological pressure, including threats to call off the wedding, generally do not make a signature involuntary. A choice may be difficult and unpleasant, but it remains a choice. Likewise, signing without reading is still voluntary. A signature is more likely to be involuntary when the other party misrepresents a material issue.
A prenup with a voluntary signature may still be invalid if it was unconscionable at the time of signing. Generally, the two hallmarks of unconscionability are extreme unfairness in the terms coupled with a lack of actual choice (typically due to fraud or concealment). Provisions that unfairly favor one party are often not unconscionable. Even when a court does find unconscionability, to invalidate the prenup, the contesting party must also show the other party failed to disclose his or her financial circumstances or that the contesting party did not waive the right to financial information and did not actually know this information.