Many Texas couples sign prenuptial agreements before they marry. This statement is especially true for persons who may be embarking on a second or third marriage. Unfortunately, even a significant percentage of second marriages end in divorce. When this happens, one party or the other may suddenly discover that the prenuptial agreement doesn’t work as anticipated. Perhaps one term is unfair, or perhaps a signature was obtained by fraud or duress. Can the agreement be invalidated? This question has no clear answer, but a review of the reasons why courts sometimes act to prevent enforcement of prenuptial agreements can help understand when and why a prenuptial agreement will not be enforced.
Failure to follow formalities
In Texas, a valid prenuptial agreement must be signed by both parties before the wedding. If this rule is not obeyed, the agreement will be ruled to be unenforceable.
Lack of free will
If one party did not act out of free will in signing the agreement, the prenup will be ruled to be unenforceable. Several actions may interfere with free will.
- Coercion by the party attempting to enforce the agreement: Coercion may consist of a threat to abandon the engagement or a threat of adverse financial action. Coercion may also involve emotional pressure by family members.
- Fraud: One party may misrepresent their financial situation, perhaps by hiding debts or inflating the value of assets. Another form of fraud is the promise to take a certain action after the marriage and the refusal to take the promised action.
- Pressure to sign: Pressure to sign that interferes with the review of the agreement by an independent counsel for each party.
Unconscionability
One or more clauses in the agreement are obviously unfair to one party or the other, thus defeating the enforceability of the agreement.
Illegal clauses
Under Texas law, prenuptial agreements cannot include clauses waiving the right to receive child support or contest a child custody order.
Getting advice from a knowledgeable attorney
Disputing the validity of a premarital agreement necessitates the initiation of a complicated legal process. No one should undertake (or resist) such an action without the advice of a competent divorce attorney.