For couples who have decided to end their marriage, knowing how to defend a prenup or postnup in the divorce may be a top concern. As with any legal contract, ensuring its validity when it’s drafted, and before it’s signed, is the best defense.

There are several factors that can invalidate a prenuptial (or antenuptial) agreement, and each should be taken into account prior to either party signing the contract. Such an agreement is vulnerable to dismissal if:

  • It was not signed voluntarily,
  • One or both parties provided false or incomplete disclosure of assets or obligations, or
  • It includes unconscionable terms

This list is not exhaustive and anybody with questions or concerns about a prenup or postnup agreement should speak with a lawyer.

Involuntary

Texas does not define involuntariness in the context of a marital agreement. Acting in response to another’s ‘threat’ to take lawful action is voluntary. When a fiancé threatens to cancel the wedding, even at the church, signing a prenup under that circumstance is voluntary because a person has a legal right to cancel a wedding. There are other reasons not to bring up with a prenup for the first time at the church, but do not count on invalidating it for that reason. Likewise, if a spouse threatens divorce unless a postnup is signed. Divorce is a lawful option. Signing a postnup to avoid divorce is voluntarily choosing between legal options. Texas courts make it difficult to prevail on involuntariness. Most people underestimate how difficult it is.

Claims of involuntariness are common in divorce with a prenup or postnup. To defend a prenup or postnup in divorce from the claim that one party did not sign the agreement voluntarily, ensure that each fiancé or spouse is given enough time to review it and consult legal counsel before signing. Also ensure all correct language is included and the signatures are notarized.

Disclosure of Assets

Each prospective spouse must fairly and reasonably disclose all pertinent information. If one fails to do so, the contract may be invalidated. This includes assets and liabilities including income, property, investments, debt, and more. This requirement may be waived, but the waiver must be worded correctly and signed before the prenup or postnup.

Unconscionable or Unfair Terms

The terms of the agreement are almost entirely up to the signees, with limited exceptions. Child support cannot be limited. One can choose to sign over the right to spousal support in the case of a divorce or choose to grant a large portion of the assets to the other signee. The assets can be divided equally, according to each’s respective possessions before the marriage, or by each spouse’s contributions during marriage.

However, if the terms are unconscionable and there was no fair and reasonable disclosure of assets and obligations, the agreement might not hold up in court. Unconscionable is not defined in the statute, but generally means so grossly unfair that one spouse would suffer undue financial hardship while the other profits heavily, it is unlikely to hold up in court.

Compliance with State Law

No legally binding contract can be made which is contradictory to the law. For example, a contract written up for the sale of a stolen car is not legally binding as the sale of stolen property is illegal. An example of an invalid or illegal provision in a prenup is a limit on the child support obligations for either party, as this is decided upon by the court.

If an unlawful provision is included, the court will probably not dismiss the document in its entirety, but will disregard the invalid clauses and enforce the rest of the agreement.

While most hope that a prenup or postnup will be filed away and never be necessary, it is important to recognize the possibility that it may be needed some day and take precautionary measures before it’s signed.