ShredWhat would happen under Texas divorce law if two spouses decide after years of marriage to tear up their prenup? Is that enough to invalidate the agreement?

I read with interest last week’s post from lawyer Daniel Clement of the New York Divorce Report about a New York case holding a premarital agreement valid even after the couple tore it up on their honeymoon. (See Braha v. Braha.) The couple was engaged less than three weeks when they married in 2002. The husband told his then-fiancé that his father “threatened to cut him off” if he did not have her sign a pre-nuptial agreement.  According to the wife, the parties never intended for the agreement to be enforceable.  Neither attempted to negotiate the agreement. While on their honeymoon, the couple ceremoniously ripped up their agreements and threw them in the ocean.  The wife destroyed her original of the agreement, but, as it turns out, the husband only destroyed a copy of the agreement. He kept his original hidden away as a secret for the 12 years of their marriage. Then, when the parties divorced in 2013, he brought out his original pre-nup and sought to enforce it.

Wife claimed that the husband fraudulently induced her to sign the agreement because he led her to believe that it was being executed as a “show” for his father.  She says Husband devised a plan where his attorney would draft the agreement and another attorney would represent her in the agreement.  Husband’s father would review the agreement. Then, all copies would be ripped up and thrown in the ocean on the honeymoon cruise. Therefore, Wife did not pay any attention to the terms of the agreement since she believed it would be void.

Husband denied Wife’s allegations. He says he never intended to deceive his father and nullify the document. He admits they tossed away copies of the agreement on the honeymoon because they would “most certainly remain married forever”.

Like Texas, New York has a strong public policy favoring premarital agreements, and in analyzing an agreement, the law requires looking only to the four-corners of the document to determine the parties’ intent.  And, like Texas, the burden is on the party trying to invalidate the agreement to prove fraud.

The court found the language in the agreement to be clear and unambiguous.  The agreement contained the boilerplate provision regarding the understandings of the parties:

“This Agreement contains the entire understanding of the parties with respect to the matters set forth herein, including, without limitation, the rights of the party with respect to the property of the other party.  There are no representations, warranties, promises, covenants or understandings, oral or otherwise, other than those expressly set forth herein.”

Further, the agreement contained provisions about how to modify or nullify the agreement:

“Neither this Agreement [nor] any provisions hereof, including without limitation, this article, may be altered, modified, terminated, or revoked, except by an instrument executed and acknowledged by both parties with the same formalities as this Agreement.”

Thus, under the terms of the agreement, the parties could only invalidate the agreement by a written, signed agreement.  Tearing up the agreement was insufficient to invalidate the agreement.

Texas law would require a similar analysis as New York under the facts of this case. In Texas, a premarital agreement is presumed valid and only limited defenses are available to invalidate a pre-nup.  One defense is that the party did not sign the agreement voluntarily. (Tex. Fam. Code §4.006(a)(1).) Typical contract defenses such as fraud are appropriately considered in the ultimate determination of voluntariness. Generally, whether a party executed an agreement voluntarily or as the result of a state of duress or coercion is a question of fact dependent upon all the circumstances and the mental effect on the party claiming involuntary execution.

Common factors considered in assessing voluntariness include:

  • The level of business sophistication of the parties;
  • The overall maturity level of the parties;
  • The education level of the parties;
  • Familiarity with premarital agreements and their impact upon martial property rights;
  • The parties’ course of dealing and length of negotiation in executing the premarital agreement; and
  • Each party’s use of independent counsel.

So, a Texas court would look first to the terms of the agreement for clear and unambiguous language.  Then, the Texas court would evaluate the defenses to the agreement – in this case the involuntariness of the execution of the agreement – based on the facts of the case.  The deck is definitely stacked against invalidation of a premarital agreement.

For more information on challenging a premarital agreement in Texas, see my blog post Dallas Court of Appeals Affirms Trial Court’s Judgment Voiding Premarital Agreement and the analysis of the Dallas Court of Appeals opinion in Moore v. Moore.

For more information about premarital agreements in Texas, see my related blog posts on Texas premarital agreements here.

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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.

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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.

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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.