In the words of Kanye West: If you ain't no punk holla, “We want prenup!” “We want prenup!” By Ashley Miller

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on 09 June 2016
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You have probably read how not to do a prenuptial agreement from a previous post by Angela Oaks. But do you know what prenuptial agreements are made of?


While planning the end of a marriage before the wedding seems a dreary task, it is actually the smart thing to do. None of us plan to divorce or separate from a spouse, but sometimes life happens and things change; better to be safe than sorry thousands of unnecessary dollars later.

History of the Prenup

Before we get into what prenuptial agreements are made of, a little history might be helpful. Traditionally, Texas courts held prenuptial agreements as unenforceable and against public policy. It wasn’t until the 1948 amendment to Article 16 § 15 of the Texas Constitution that spouses had a right to partition and exchange existing real and personal property (postnuptial). In 1980, after some change in public policy, another amendment allowed partition and exchange between spouses and soon-to-be-married couples for existing and future acquisitionsof real and personal property, including earnings and salaries (postnuptial and prenuptial). This amendment was allowed a retroactive effect on previously unenforceable agreements between couples.

Contents of the Prenup

Fast forward to today and, in addition to being in Article 16 of the Texas Constitution, the rules for prenuptial agreements (adopted from the Uniform Prenuptial Agreement Act) are written in Chapter 4 of the Texas Family Code. The code requires agreements, amendments, and revocations to be in writing and signed by both parties as well as provides a list of agreements couples can make:

  • The rights and obligations of each of the parties in any of the property of either or both of them whenever or wherever acquired or located;
  • The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
  • The disposition of property on separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
  • The modification or elimination of spousal support;
  • The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
  • The ownership rights in and disposition of the death benefit from a life insurance policy;
  • The choice of law governing the construction of the agreement; and
  • Any other matter, including their personal rights and obligations, not in violation of public policy or a statute.

Although couples can agree to many things, one major item couples cannot agree to is child support. The court will follow state guidelines in determining the proper amount of child support regardless of any agreement between the parties.

Challenging the Prenup

Effective upon marriage, prenuptial agreements will be enforced unless the person challenging the agreement can prove, by clear and convincing evidence, that it was involuntarily signed or that the agreement was unconscionable when signed and, before the signing, there was no fair and reasonable financial disclosure, no voluntary, express waiver of disclosure in separate writing, and she did not or could not have reasonably known the financial status of her future spouse. Additionally, attempts to change the character of property outside the parameters of the Texas Constitution are void.

Lastly, it is important to note that agreements need not be fair to be enforced. (In Williams v. Williams, 569 S.W.2d. 867 (Tex. 1978), the court enforced an agreement that was presented on the afternoon before the wedding day!) And, unlike other contracts, there is no consideration required to be enforced; though, it may be helpful to the proponent of the agreement to add incentives for compliance with the agreement.


While this brief, general overview may be enough to get you thinking about a prenuptial agreement, don’t forget to stop by and speak to our attorneys at Frye, Oaks, Benavidez, & O’Neil for actual legal advice. These licensed attorneys would be glad to assist you in protecting your future.

713 227-1717


About the author: Ashley Miller is a 3L law student at the University of Houston Law Center and the 2016 summer intern at Frye, Oaks, Benavidez & O'Neil, PLLC. As a law student she has researched and academically written on Texas Family Law, Marital Property, and Homestead in the foregoing blog post which is educational in nature only - at time of blog posting Ashley Miller is not a licensed Texas attorney and is not dispensing legal advice. This blog post should not be relied upon as legal advice by any prudent person under any circumstances at any time. 


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