What You Should Know About Divorce With a Prenuptial Agreement

 Posted on December 27, 2021 in Divorce Issues

prenuptial agreement divorce lawyerHaving a prenuptial agreement in place can make divorce significantly easier for many spouses. A strong prenuptial agreement can create a faster, simpler path to a finalized divorce for many couples. However, for others considering divorce, their prenuptial agreement is a source of great stress. Some people may even fear that they will be unable to support themselves after getting divorced because the prenuptial agreement is heavily in their spouse’s favor. 

The good news is that not every prenuptial agreement will be enforceable exactly as written. There are limits as to what a prenuptial agreement can or cannot do. If worries about your prenuptial agreement are keeping you from filing for divorce, it may be wise to consult a qualified attorney. A lawyer can evaluate your agreement and offer you a better idea of how it may affect your divorce proceedings. 

What Can a Prenuptial Agreement Control During Divorce?

Prenuptial agreements are very commonly used to decide in advance how your property would be divided in the event of divorce. These contracts can be used to designate certain assets as the separate property of one spouse or to decide how marital property like joint accounts or real estate would be divided. Spousal support can be waived, but this provision might not be enforced if it would leave one party in dire financial straits. 

Which Provisions Cannot be Included in a Prenuptial Agreement?

There are limitations on what a couple can agree to in a prenuptial agreement. The one major issue in many divorce cases that cannot be addressed in a prenuptial agreement is parenting. Child support and child custody cannot be contractually decided in advance. The child is the one who has a right to receive support and guidance from both parents. Neither parent can sign away their child’s rights in this area. 

Aside from that, state courts put the best interest of the child first. Circumstances may have changed significantly since the prenuptial agreement was signed such that following the agreement would not be in the interests of the child. 

When is a Prenuptial Agreement Unenforceable? 

In some circumstances, the court will not enforce a prenuptial agreement. If an agreement is drastically unfair to one spouse or was created in an unfair manner, it may not hold up in a Texas court. You may be able to have your prenuptial agreement invalidated if any of these problems are present: 

  • Unconscionability - This term means that a contract is shockingly unfair to one spouse and would create severe hardship. This is common for longtime homemakers who have been out of the workforce for many years and may struggle financially while attempting to rebuild their careers. While couples can generally agree to waive spousal support in a prenuptial agreement, the court is unlikely to enforce that provision if one spouse would be unable to meet their basic needs without it. The court may even find unconscionability if the disfavored spouse would suffer a greatly reduced standard of living, or if one spouse disproportionately takes marital assets. 
  • Nondisclosure - Both parties are entitled to be aware of each other’s finances, debts, and assets before signing a prenuptial agreement. If your spouse had assets you did not know about or debts that were not disclosed before you signed, the court may find that you were in a way deceived into signing the agreement. Manipulative spouses will sometimes try to use prenuptial agreements to get their spouse to waive interest in an asset they did not know exists. The court may find it reasonable to believe that you might not have signed the contract as it is had you had all the pertinent information. The agreement may be invalidated. 
  • Coercion - Your prenuptial agreement is only valid if both parties signed it voluntarily. If you signed under duress or heavy pressure, the contract might not be valid. The court will consider the entirety of the situation in which you signed. That your spouse refused to get married without a prenuptial agreement is not enough to show duress. However, if your spouse presented you with an already-written contract very shortly before the wedding, that may suggest duress. While it is not a requirement that both parties in a prenuptial agreement be represented by their own counsel, if only one spouse enjoyed the advantage of an attorney, the court may consider that as a factor pointing towards involuntariness. 

These are just a few of the reasons that a court might set aside a prenuptial agreement entirely. If any of these factors apply in your situation, you may have a strong argument for invalidating your agreement. If you believe that one of these problems exists with your prenuptial agreement, it is best to consult an attorney who can evaluate your situation. 

What Happens if My Prenuptial Agreement is Invalidated?

In this event, the divorce will proceed as if you never had a prenuptial agreement. You and your spouse will still have options for resolving your divorce without litigation. Many modern spouses are turning to mediation as a way to peaceably work out the issues in their divorce. 

For those who are in a state of conflict such that mediation would be ineffective, collaborative divorce is an option. In collaborative divorce, each party is represented in negotiations by an attorney in an effort to reach an agreement and avoid litigation. Even arbitration is an option now. There are a multitude of ways to resolve a divorce fairly without a prenuptial agreement. 

Work Closely With a Skilled Divorce Attorney

If you have any concerns about how a prenuptial agreement will affect your interests during your divorce case, you will need to work closely with a knowledgeable divorce attorney. Challenging a prenuptial agreement can be a difficult task, especially when it was signed many years ago. Having an experienced lawyer advocating for your interests can lead to a better outcome for many. 


About the Blogger: Attorney Stephen Clark is the founder and principal attorney of Clark Law Group in Dallas, Texas. He and his team work hard on behalf of clients who need help with divorce and family law concerns, as well personal injury matters. 


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