Most Texas matrimonial attorneys believe that a properly drafted prenuptial agreement can save much stress and anger if the couple should decide to end their marriage. Generally speaking, prenuptial agreements will be enforced as written by the judge overseeing the divorce proceeding. Occasionally, however, one of the parties to the agreement will decide that the prenuptial agreement contains provisions that are contrary to that person’s best interests. Can the agreement be set aside by the court? The answer, in a limited set of circumstances, is “yes.”

In order to be enforceable, Texas prenuptial agreements must be in writing and signed by both parties before the wedding. Thus, oral agreements are invalid on their face. Agreements that were signed one or both parties after the wedding are likewise prima facie invalid. But what about agreements that satisfy the formal requirements? Can they be avoided?

A very persuasive reason for abrogating a prenuptial agreement is proof that the party who is attempting to escape the terms of the agreement was pressured into signing the agreement. Such pressure may have come from the other party’s attorney or that party’s family. A similar reason for setting aside an agreement is evidence that the party against whom enforcement is sought did not, in fact, read the agreement before signing it. A related reason for avoiding the agreement is proof that the defendant party did not have time to consider the provisions in the agreement or sufficient time to consult an attorney about the agreement. If one party used false or incomplete information to persuade the other party to sign the agreement, that party will be barred from enforcing the agreement.

Certain clauses will render a prenuptial agreement invalid. One of the most frequent ground for invoking this reason is the attempt by one party to limit or eliminate the payment of child custody. If the court finds that the agreement is unconscionable, it can void the entire contract. Consultation with an experienced and capable family law attorney prior to signing a prenuptial agreement provides far better protection than an expensive and extended divorce trial in which the validity of the agreement becomes an issue.

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