A Texas prenuptial agreement is a written contract, signed by both of you before the wedding, that sets the rules for property, income, debt and spousal support if the marriage ends. It is hardest to challenge when it is signed well before the wedding, after full financial disclosure, with each of you advised by your own lawyer. Below is what one can cover, what it can’t, and the steps to get it signed right.
What a Texas prenup can and can’t cover
Texas calls these premarital agreements, and Chapter 4 of the Family Code governs them. Under Tex. Fam. Code § 4.003, the two of you can agree on:
- Rights in property either or both of you own, wherever it was acquired
- Who may buy, sell, use, lease, borrow against and manage property
- How property is divided on separation, divorce, death or another event
- Changing or eliminating spousal support
- A will, trust or other arrangement to carry out the agreement
- Who receives a life insurance death benefit
- Which state’s law governs the agreement
- Other personal rights and obligations that don’t violate public policy or a criminal statute
The same section draws a hard line: a prenup cannot adversely affect a child’s right to support. Custody isn’t settled in advance either. A court decides parenting questions based on the child’s circumstances at the time.
Prenups carry extra weight here because of the Texas default. Property either spouse acquires during the marriage is community property unless it fits the definition of separate property, and a court presumes property on hand at divorce is community unless someone proves otherwise by clear and convincing evidence (Tex. Fam. Code §§ 3.001–3.003). Rent from a house you owned before the wedding, dividends from inherited stock and the salary from a company you founded can all land in the community estate. A prenup changes that default before it starts running.
Before you start: what to have ready
- A wedding date and a signing date well ahead of it
- A list of everything each of you owns and owes: bank, brokerage and retirement accounts, real estate, vehicles, loans and credit cards
- Recent tax returns and pay records
- Business documents: company or partnership agreements, buy-sell terms, recent financial statements and any existing valuation
- Trust documents or details of expected inheritances
- Your current wills and beneficiary designations
- Any child support orders or custody arrangements from a prior relationship
- A short, honest list of what each of you wants the agreement to accomplish
How to get a prenup signed right, step by step
- Talk before you hire anyone. Name what each of you wants to protect and why (a stake in a Frisco startup, a house bought before the wedding, a medical practice, a future inheritance) and what the other person needs to see the deal as fair. Negotiations that start from shared goals move faster than ones that start with a surprise draft.
- Build the calendar backward from the wedding. Aim to have the agreement signed before you apply for your marriage license. The license has its own clock: a ceremony generally can’t take place during the 72 hours after the license is issued, and the license expires if you don’t marry within 90 days (Tex. Fam. Code ch. 2). Frisco sits in both Collin and Denton counties (City of Frisco), but any Texas county clerk can issue your license, and a state-approved premarital course can waive the waiting period and save up to $60 on the fee (Texas State Law Library). A prenup signed in the crowded final week invites a later argument that the signature wasn’t voluntary.
- Each hire your own lawyer. One drafts, the other reviews and negotiates. The Family Code doesn’t require separate counsel, but a spouse who had independent advice is in a weak position to later claim they didn’t understand what they signed. If you’re handed a finished draft, get your own review right away.
- Exchange full financial disclosure. Trade the documents on the checklist above and attach a summary of each person’s assets, debts and income to the agreement as schedules. Under Tex. Fam. Code § 4.006, an agreement is unenforceable if the challenging spouse proves they didn’t sign voluntarily, or proves it was unconscionable when signed and that, before signing, they didn’t receive fair and reasonable disclosure, didn’t waive further disclosure in writing, and didn’t have, and couldn’t reasonably have had, adequate knowledge of the other’s finances. Thorough, documented disclosure answers most of that second path.
- Decide the terms. Work through the § 4.003 menu with your lawyers: how separate property and the income from it will be treated, whether growth in a business stays with the owner, how a home will be handled, whether spousal support is modified or waived, and what happens at death. Business owners should spell out how the company will be valued and who keeps control. Our page on divorcing with a business in Texas explains why those questions get expensive when they’re left open.
- Negotiate in writing and keep the record. Redlines, cover emails and revised drafts show that both of you read, questioned and changed the terms, which is useful evidence of voluntariness if the agreement is ever challenged.
- Sign it properly. A Texas premarital agreement must be in writing and signed by both parties, is enforceable without consideration, and takes effect on marriage (Tex. Fam. Code §§ 4.002 and 4.004). Sign the final version with the disclosure schedules attached, initial each page, have the signatures notarized, and make sure each of you leaves with a complete signed copy. If either of you is waiving disclosure beyond what was provided, put that waiver in writing in the agreement itself.
- Keep the paperwork current after the wedding. Update wills and beneficiary designations to match; TexasLawHelp points out that a prenup keeping property separate doesn’t, by itself, leave that property to a surviving spouse. A will does that. After the wedding, the agreement can be amended or revoked only by a written agreement signed by both of you (Tex. Fam. Code § 4.005), so revisit it in writing after big changes like a new business, children or a large inheritance.
Common mistakes
- Using a generic online form. Many are written for other states and say nothing about how Texas treats income from separate property.
- Commingling after the wedding. Depositing paychecks into an account the agreement calls separate, or paying a separate-property mortgage from joint funds, blurs the lines the prenup drew, and the spouse claiming separate property still has to prove it.
- Losing the original. Any limitations period on a claim under the agreement is tolled during the marriage, though equitable defenses such as laches and estoppel remain available (Tex. Fam. Code § 4.008). The document may matter decades from now, so store signed originals where both of you, and your executors, can find them.
When to call a lawyer
Every couple signing a prenup should have two lawyers, one for each of you. Call early, before wedding planning takes over, if:
- You own all or part of a business, a professional practice, or equity compensation that vests over time
- You expect an inheritance or are a trust beneficiary
- One of you earns much more than the other or plans to step away from work to raise children
- You’ve been handed an agreement and the wedding is approaching
- You’re already married and want the same protections, which calls for a different kind of agreement; see our page on postnuptial agreements
We draft and review premarital agreements as part of a family-law-only practice. Mark L. Scroggins, the firm’s Managing Partner, has been licensed in Texas since 1993 and is Board Certified in Family Law by the Texas Board of Legal Specialization (attorney profile). Couples in Frisco, Plano, McKinney and Allen meet with us at our Plano office, 5851 Legacy Circle, Suite 600, Plano, TX 75024, or can call 214-469-3100 or use our contact page. If you already have a draft from the other side, bring it to the first meeting. To see what is at stake in a large estate with no agreement in place, read high-net-worth divorce in Plano and Collin County.
FAQ
Does a prenup have to be notarized in Texas?
Tex. Fam. Code § 4.002 requires a written agreement signed by both parties and doesn’t list notarization. Notarizing is still common practice because it documents who signed and when.
Can a Texas prenup waive spousal maintenance?
Yes. Tex. Fam. Code § 4.003 lets couples modify or eliminate spousal support. Whether a specific waiver is enforced later turns on the voluntariness and disclosure rules described above.
Can a prenup decide custody or child support?
No. A premarital agreement can’t adversely affect a child’s right to support, and a court decides custody based on the child’s circumstances at the time.
We’re already married. Is it too late?
No. Married couples can sign partition or exchange agreements under Subchapter B of Tex. Fam. Code ch. 4. See our page on postnuptial agreements.
This page is general information, not legal advice, and reading it does not create an attorney-client relationship.