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Prenups must be done right

Monday, May 21, 2018

Prenuptial agreements can help resolve many potential complex disputes in a divorce. But, like any contract, Texas courts can refuse to enforce an unfair or poorly-drafted agreement and further complicate a divorce.

Well-drafted prenups may safeguard family assets, particularly for the children of a spouse's first marriage or relationship. These are also important if there is a family business, large inheritance or substantial income differences. Prenuptial agreements can also reduce bad publicity, expenses and bitterness during a contested divorce.

Prenups can also depart from Texas community property laws on property division and allow the spouses to have more control on distribution of their assets and debts. However, courts will not overcome these laws if the agreement is not properly drafted or has other legal flaws.

Evidence of coercion forcing a person to sign the agreement may make it unenforceable. Likewise, courts may not enforce a prenup where either spouse did not read the agreement.

Transparency is also an important part of negotiating and executing a prenuptial agreement. Both spouses must fully disclose their assets and debts. Hiding assets is not only unfair but can invalidate the agreement.

Courts will not enforce illegal terms or provisions that violate public policy. For example, spouses cannot agree to waive child support.

Prenuptial agreements that are also extremely unfair or unconscionable for one spouse may not be enforced. These include prenups that turn out to be a financial windfall for one spouse but a catastrophe to the other spouse.

For these reasons and other reasons, a court may not enforce an agreement where each spouse did not have their own independent attorney to represent them in negotiations, provide guidance and assure that their separate interests are protected.

An attorney can help assure that these agreements are fair and reasonable and properly drafted and that a spouse does not surrender important rights. They can also assist with the negotiation and drafting of post-nuptial agreements after the spouses marry.

Source: Forbes, "How to bust prenuptial agreements," Russ Alan Prince, April 4, 2018

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