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Is your prenuptial agreement valid?

Prenuptial agreements are becoming increasingly common. Maybe you signed one yourself some years ago. However, time has passed and circumstances have changed. If you are now contemplating divorce, you may be wondering whether the court will still enforce that agreement.

Texas law sets forth several requirements for a prenup's validity. Generally, Texas courts favor enforcing prenups so long as they do not suffer from obvious technical defects. However, several types of errors can lead to a finding that the prenup is invalid.

Technical rules

The most basic legal requirement for a Texas prenup is that it be in writing and signed by both parties. The law also requires that both signatures occur before the marriage. In some cases, a court may decide to uphold a tardily signed prenup as a postnuptial agreement, but such a decision is in no way guaranteed.

Fundamental fairness

In addition to technical requirements, the law concerns itself with some basic issues of fairness. First, both parties must sign voluntarily. Complex legal questions can arise when it comes to drawing the line between a normal level of insistence and the kind of pressure that essentially coerces the other person.

Voluntary signing

Texas courts typically do not find coercion even if the party insisting on the prenup makes it a condition of marriage or presents the document moments before marriage in front of everyone. While these are unpleasant situations, the other party has the option of refusing to sign and accepting the consequences. On the other hand, judges are more likely to find coercion if it involved deception.

Unconscionability

Second, the agreement may not be unconscionable - that is, extremely unfair. This issue does not relate to whether the provisions in the prenup treat both parties fairly. Rather, both parties have the right to review the agreement and have their attorneys review them before signing. Both parties also have a right to a full disclosure of relevant factors, such as the other party's finances and assets. Usually, a prenup is only invalid due to unconscionability at the time of signing, not at any subsequent time.

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