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Understanding Property Division in a Premarital Agreement

When some Texas couples decide to marry, the choice is made to have a premarital agreement. This is in place for many reasons. One that is often referenced is the desire to protect property and assets belonging to one or both spouses. Property division is frequently contested in a divorce, and it is important that those who are moving on from a marriage understand how a premarital agreement and its regulations cover this issue.

With a premarital agreement, the parties are allowed to include the following: property belonging to either or both parties independent of where it is located or how it was acquired; the right to do what the party wishes – sale, encumbrance, disposal, transfer – of the property; the right to dispose of the property when the couple separates, ends the marriage or one of the spouses dies; modifying or eliminating spousal support; crafting an agreement such as a will or trust to have the agreement completed; rights to ownership and disposition of a death benefit that was part of an insurance policy; the choice of law that governs the agreement; and any other issue that might arise.

There are times when a premarital agreement will not be enforceable. This is the case when it is proven that the following occurred: the party failed to voluntarily sign the agreement or the agreement was unfair when it was signed or prior to it being signed. For the latter, the person who signed the agreement must not have received a fair and reasonable disclosure of the property, nor did they receive information regarding the obligations of the other party. The agreement is also not enforceable if one party did not or could not have had sufficient information regarding the property. The court will decide whether or not a premarital agreement was unconscionable.

There are often disagreements about a premarital agreement when a couple decides to divorce. This is not unusual when there is a significant amount of property that must be sifted through. Those who are considering signing a premarital agreement, are trying to have one upheld, or are trying to call into question its validity need legal help from an attorney experienced in property division.

Source:, “Chapter 4. Premarital and Marital Property Agreements — Sec. 4.003. Content; Sec. 4.006. Enforcement,” accessed on Jan. 4, 2016