The Uniform Premarital Agreement Act defines the conditions that must be met for an effective and legally binding premarital agreement. The common thinking with people that have not consulted legal counsel, is that a premarital agreement can be written up and signed by the parties without legal counsel representing each of the parties to the agreement.
A premarital agreement is defined and means an agreement between prospective spouses made in contemplation of marriage and to be effective on marriage. “Property” means an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings.
The agreement referenced in this article applies only to parties who intend to be married. It does not apply to parties who are living together but who are not contemplating marriage. Additionally, the property definition is intended to apply to all forms of property interests, including income from property interests and personal services income.
The Texas Supreme Court concluded that the 1980 amendment to Tex. Const. art. XVI, § 15, “demonstrates an intention” to authorize future premarital agreements. Further, the 1980 amendment impliedly validated premarital agreements that were executed before the 1980 amendment. The court also stated that the Texas legislature intended to establish a public policy that premarital agreements should be enforced.
Courts construe this section (formerly section 5.41) broadly to allow parties contemplating marriage the flexibility to contract with regard to their property and other rights incident to the marriage relationship.
In other cases, the Supreme Court has held that a trial court erred when it enforced an Islamic Mahr agreement as a premarital agreement because, although the parties executed the Mahr agreement before their religious wedding ceremony, the agreement was executed after a valid civil wedding ceremony.
What formalities must a premarital agreement include? A premarital agreement must be in writing and signed by both parties. The agreement is enforceable without consideration.
What must the agreement contain in the content of the document?
The parties to a premarital agreement may contract with respect to:
(1) the rights and obligations of each of the parties in any of the property of either or both of
them whenever and wherever acquired or located;
(2) 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
(3) the disposition of property on separation, marital dissolution, death, or the occurrence or
nonoccurrence of any other event;
(4) the modification or elimination of spousal support;
(5) the making of a will, trust, or other arrangement to carry out the provisions of the agreement;
(6) the ownership rights in and disposition of the death benefit from a life insurance policy;
(7) the choice of law governing the construction of the agreement; and
(8) any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
However, the right of a child to support may not be adversely affected by a premarital agreement.
The Act permits parties to enter into a premarital agreement regarding any of the matters listed above and any other matter that is not in violation of public policy or which by statute may impose a criminal penalty. The above listed matters are not exclusive but are illustrations of what the contract may contain. However, a premarital agreement may not adversely affect the right of a child to support.
When does the premarital agreement become effective?
The premarital agreement becomes effective on the date of marriage.
Can the premarital agreement be amended or revoked?
After marriage, a premarital agreement may be amended or revoked only by a written agreement signed by the parties. The amended agreement or the revocation is enforceable without consideration
Is the premarital agreement enforceable?
A premarital agreement is not enforceable if the party against whom enforcement is requested
(1) the party did not sign the agreement voluntarily; or
(2) the agreement was unconscionable when it was signed and, before signing the agreement, that party:
(A) was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
(B) did not voluntarily and expressly waive, in writing, any right to disclosure of the
property or financial obligations of the other party beyond the disclosure provided;
(C) did not have, or reasonably could not have had, adequate knowledge of the property or financial obligations of the other party.
An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law. The remedies and defenses in this section are the exclusive remedies or defenses, including common law remedies or defenses.
A premarital agreement is presumed to be enforceable. The burden of proof is on the party challenging enforceability.
Our policy with premarital agreements is that both parties must have legal counsel advise the party on the validity of the terms and conditions for enforceability. The parties should also have their legal counsel identified in the agreement to avoid attack on the document.