What Provisions Can Prenuptial Agreements Contain Under Texas Law?

Texas law recognizes and respects a person’s freedom to enter into contracts with others. In fact, many jurisdictions in the United States consider marriage to be a type of contract where the parties exchange promises and have reciprocal duties.

Texas law considers a person’s freedom to contract to be very broad. For example, Texas courts allow spouses to contract into an alimony obligation despite Texas public policy against the judicial recognition and enforcement of spousal support awards after legally dissolving the spouses’ marriage.

Likewise, spouses can enter into prenuptial contracts—also known as premarital agreements—where they have the freedom to carve out their respective privileges and obligations during marriage and in the event of a divorce. A significant source for a soon-to-be couple’s right to contract in and out of certain marital rights is the Uniform Premarital Agreement Act, ratified under Texas Family Code § 4.001 et seq.

Under Texas’ Uniform Premarital Agreement Act, a valid prenuptial contract can cover:

  • The spouses’ rights and obligations regarding any property they acquire

  • The spouses’ rights to use and transfer property

  • The disposition of property in the event the spouses’ marriage terminates due to divorce or death

Establishing the Character of Property

The community property system can be viewed as a source of default rules for property division that applies to divorces in Texas. In contrast, Texas law allows spouses to establish their own custom-tailored rules for dividing marital assets using contracts to meet their specific needs and goals. For example, an asset that would otherwise be divisible under the community property system can take on a separate property characterization under a valid prenuptial agreement.

Contracting Family Support

Under Family Code § 4.003, the parties are free to establish terms regarding “the modification or elimination of spousal support.” For example, the spouses are free to agree that neither spouse owes a duty of support to each other after marriage. Conversely, a prenuptial agreement can impose a contractual duty on a party to provide support for their step-children. Absent a valid contract providing otherwise, a step-parent has no legal obligation to provide support to their step-child.

Other Valid Provisions in a Prenuptial Contract

In addition to property and financial terms, a prenuptial agreement can contain the following terms which are legally enforceable:

  • The adoption of a family name upon marriage

  • The creation and use of joint bank accounts

  • Who is responsible for paying certain expenses

  • Dispute resolution methods, such as marriage counseling

  • The effect of extramarital relationships on property division in a divorce

Unenforceable Prenuptial Contract Provisions

Like all other contracts, the parties to a prenuptial contract may not agree on a provision that violates public policy or implicates criminal culpability. For example, bigamy—the simultaneous marriage to two or more different individuals—is a crime under Texas Penal Code § 25.01. Therefore, a prenuptial agreement cannot grant a person the right to have more than one spouse at a time.

Additionally, public policy preserves a child’s right to receive the necessary support from their parent. As a result, a contract provision that functions to impact child support negatively is unenforceable. For instance, a prenuptial agreement may not cap a parent’s child support obligation. A court with jurisdiction to enforce a contractual child support obligation is free to ignore a provision that establishes a ceiling on the amount of child support a parent owes.

Learn About Your Rights by Calling Coker, Robb & Cannon, Family Lawyers

You have extensive rights when it comes to the contents of a prenuptial contract. However, both parties can benefit from having independent counsel review its provisions before they proceed with executing the agreement. If you need advice about the terms of a prenuptial, postnuptial, or divorce settlement agreement, you should consult Coker, Robb & Cannon, Family Lawyers. Our legal team has years of invaluable experience assisting couples understand their rights and obligations under such agreements.

For answers to your questions about your legal rights and options according to a marital agreement, call us at (940) 293-2313 or contact us online today.

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