The Texas Family Code sets out the requirements for a valid, enforceable premarital agreement (aka “prenup”). Most importantly, premarital agreements need to be in writing. Oral or verbal agreements are not recognized. Some states require a notarized agreement, but Texas does not.

Second, the prenuptial agreement must be executed before the parties get married. A whole new set of rules applies to agreements that are entered into after the marriage takes place.

Third, both partners must fully disclose their assets and liabilities. Most premarital agreements waive any disclosure that isn’t contained in the document.  The risk for failing to fully disclose assets and debts is that a court could later void the agreement due to lack of disclosure if challenged. Premarital agreements frequently alter a person’s property rights under existing law either in the event of death or divorce, so a party can only fairly evaluate the effect of the property rights he or she is being asked to release if a full disclosure of the property and debts is provided.

Each party must represent their own interests and, preferably, have independent attorneys representing each of them. It is unethical for one lawyer to represent both parties in a premarital agreement.

Most importantly, each partner must sign the prenuptial agreement voluntarily. An agreement that was not voluntarily signed is unenforceable and will be voided by a court upon a challenge to the premarital agreement either on death or divorce.

The agreement cannot contain provisions that limit child support rights. A couple cannot agree that one spouse will not seek child support. A court is likely to strike out any adverse limits relating to child support.

For help in drafting your prenup, contact the Texas board certified attorneys at O’Neil & Attorneys.

Read more on premarital agreements: 

What is a Prenup?           

Does getting a prenup mean that my fiancé doesn’t trust me?

But I’m not wealthy. Do I really need one?

How much will a prenup cost?

Can I skip the lawyer fees and D.I.Y. my prenup?

How to I tell my spouse-to-be that I want a prenup?

 

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 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 27 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, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, 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. She was named one of the Best Lawyers in America for 2016 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.