Using Prenuptial Agreements in Texas

Celebrity prenuptial agreements can certainly make headlines. They include unique (and sometimes unflattering) requests that become public fodder; especially when things don’t work out.

Kim Kardashian reportedly will keep all her premarital assets as well as income she earned during her 72-day marriage to Kris Humphries. It is rumored that sister Khloe Kardashian’s prenup with new Dallas Mavericks forward Lamar Odom includes a $5,000 monthly shopping budget and $1,000 monthly beauty budget. Katie Holmes apparently receives $3 million for every year she’s married to actor Tom Cruise. If the marriage lasts more than 11 years, she could be entitled to half of his fortune should they divorce. On the opposite end of the spectrum, Paul McCartney turned down a prenuptial agreement before tying the knot with Nancy Shevell. The legal wrangling in his last divorce probably soured him on the prospect of another prenup.

As people become more ambivalent about marriage, prenups are becoming more common as couples are increasingly prudent about parting ways in case the relationship does not work out. This article will explain what prenuptial agreements are, discuss their benefits and limitations, and help determine whether a prenup is right for you.

Texas Prenups in General

Prenuptial agreements are essentially contracts; written agreements entered into between spouses before they are married. Couples use prenups to avoid disputes regarding property ownership and division of financial assets in the event of a divorce. Prenups are commonly used by couples entering a second marriage, as they want to make clear definitions of separate property. Some couples are combining new households and want to protect children or other relatives from a first marriage. Others may receive income from a jointly-held business with their ex-spouse, or spousal support from a past marriage, and would like to make sure such income remains separate property.

However, this does not mean that couples entering their first marriage are prohibited from entering into a prenup. People commonly use prenuptial agreements to protect assets owned before the marriage or to assign debts to either spouse in the event of a divorce.

Generally, Texas family courts recognize prenuptial agreements if the parties:

•had independent counsel in creating the agreement,
•were aware of their rights regarding property division under Texas law, especially if they agree to waive such rights,
•entered into the agreement freely and voluntarily; and
•were aware of each other’s income, and that full disclosures had been made.

Pros of Prenups – Clear Communication

Since financial discord is the primary reason for divorce, talking to your spouse ahead of time regarding finances and can help in avoiding future rifts over asset management. Of course, prenups are not the most romantic topic for discussion, especially because it invites the thought that your relationship could end badly. However, discussing these issues nurtures healthy communication, sets clear expectations for financial harmony, and breaks down potential barriers that may hinder your relationship. Even if you and your spouse decide a prenup is not for you, discussing it is a very good idea, and you could make fun of celebrities at the same time.

Cons of Prenups – Rocking the Boat

Conversely, prenups have their drawbacks. Some people broach the topic simply at the wrong time. Not only is in bad taste to propose a prenup soon before a wedding, it may not be enforceable in court. Also, a prenups may uncover other faults in the relationship (other than a significant income disparity). Trust issues, especially when manifested through a prenups, can doom a relationship.

Ultimately, if you fear that discussing a property and finance distribution and the possibility of separation or divorce will irreparably harm your relationship, a prenup may not be right for you.

Limitations of Prenups

While you may agree on a number of a financial and property issues through a prenup, it cannot include designations for child support or child custody. Only family courts may make final determinations on these issues. The court must follow statutory guidelines in calculating child support, and must make specific findings if it finds that a deviation is appropriate. Likewise, custody is determined by using the "best interest of the child" standard, where the court considers a number of factors to determine where the child will live and which parent may make decisions for the child.

Also, a court can set aside any part of a prenup it finds to be unfair or not in the interest of justice.

The preceding is not intended to be legal advice. If you have questions about prenuptial agreements in Texas, an experienced Texas family law attorney can help.


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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 30+ years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 30+ years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW for multiple years. She was named one of the Best Lawyers in America and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.