Dispelling Myths About Prenups In Texas

The period between Thanksgiving and Valentine's Day is sometimes referred to as "engagement season" because almost half of all marriage proposals occur during this time. In addition to champagne toasts, cake tastings, and gown fittings, engaged couples should consider adding a premarital agreement ("prenup") to their to-do list.

While prenups might seem about as festive as the Grinch stealing Christmas, a good prenup can help lay the groundwork for a healthy and happy marriage. Below are some myths about prenups (Texas Premarital Agreements) as well as highly useful facts on how to approach prenups in Texas.

Prenup Myths and Facts:

MYTH: "A prenup means the marriage is doomed to fail."

FACT: It is true that prenups usually address things like division of property, spousal support, and reimbursement claims – matters that arise in a divorce. However, prenups can also address things like financial responsibilities and contributions within the marriage, the creation and use of joint accounts, and plans to address disagreements (e.g., counseling). Prenups also allow couples to identify the property each spouse brings to the marriage, clarify expectations for handling marital finances, and protect children from previous relationships.

No one gets married intending to divorce, but sometimes divorce happens. A prenup allows couples to decide what that would look like when they are still committed and in love, rather than when they are in the throes of crisis. By alleviating uncertainty, prenups can provide a sense of security. A good prenup can be compared with insurance; no one wants or expects a car wreck, but we purchase auto insurance just in case.

MYTH: "Prenups are only for millionaires."

FACT: Any couple can benefit from a prenup, especially if one or both prospective spouses owns a business, has a high-income potential, expects to inherit money or property, has significant debt, has children from a prior relationship, or plans to be a stay-at-home parent. Couples who intend to reside in two or more different states during marriage – such as professional athletes and servicemembers – can also benefit from a prenup. Rather than being subjected to the law of whatever state they happen to call home, spouses can utilize a prenup to decide which state's laws are applied in the event of a divorce.

Prenups can also be utilized to discourage bad behavior by a spouse. For example, some prenups include a "poison pill" provision stating that a spouse forfeits certain rights if he or she commits adultery.

MYTH: "Anyone can draft a prenup."

FACT: Sometimes, people use ChatGPT or online services to create DIY prenups, or they try to save money by hiring a lawyer friend or acquaintance who does not practice family law. However, it is important to recognize that a premarital agreement is a specialized, sophisticated contract that is best drafted by an experienced Texas family law attorney. Family law attorneys generally do not just draft prenups – they also appear in court to defend and contest their enforceability, so they understand what it takes to create an enforceable agreement.

MYTH: "Prenups are not enforceable in Texas."

FACT: In Texas, a prenup that is signed voluntarily and meets legal requirements is likely to be enforced. A prenup can be found unenforceable if one spouse proves it was not signed voluntarily or that it was unconscionable and he or she did not receive proper financial disclosures. An experienced family lawyer understands and considers these issues in the drafting and negotiation of a premarital agreement to prevent enforceability issues.

MYTH: "Prenups are one-sided; they only benefit the higher-earning spouse."

FACT: A premarital agreement that is negotiated by the parties – ideally each with their own independent attorney – reflects both spouses' interests. There are many ways a well-negotiated and well-drafted prenup can protect both spouses. For example:

1. A prenup can ensure a reasonable level of spousal support in a potential divorce.
2. A prenup can contain a "sunset clause," wherein the agreement expires after a certain length of marriage.
3. A prenup can state that, in the event of a divorce, the higher-earning spouse must pay the lower-earning spouse a certain amount for each year of marriage.
4. A prenup can require the higher-earning spouse to deposit a certain portion of his or her income into a joint account each month.

Premarital agreements may not be the most romantic part of wedding planning, but a well-drafted agreement can help couples build a strong foundation for their future.

A premarital agreement can help bring peace of mind to the engaged couple. Please see this article from colleague Reagan Wish, which also mentions how to plan for your meeting with your attorney.

For deeper explanation of how Texas looks at marital property, please see this item I wrote last year on Marital Property Basics.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.