Simply put, a “premarital agreement” is an agreement made in contemplation of marriage, to be effective upon marriage, between prospective spouses. [Tex. Fam. C. Section 4.001] The Texas Family Code sets out the requirements for a valid and enforceable premarital agreement: it must be in writing (Texas does not recognize verbal agreements), be executed before the parties are married, contain full disclose of each party’s assets and liabilities (or include a written waiver of this information, which is highly discouraged), be entered into and signed voluntarily by each party, and not contain provisions that limit child support rights.
It is highly advisable that each party have their own independent legal representation prior to entering into a premarital agreement. It is unethical for an attorney to represent both parties to a premarital agreement in Texas.
The Texas Family Code, having adopted the Uniform Premarital Agreement Act which is in effect in 26 jurisdictions of the Untied States, specifically authorizes parties to contract as to [Tex.Fam.C. Section 4.003]:
- Rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
- Rights to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage encumber, dispose of, or otherwise manage and control property;
- Disposition of property on separation, divorce, the death of either party, or the occurrence or nonoccurrence of any other event; and
- Choice of law governing the construction of the agreement; as well as other matters. It is worth noting, however, that the right of a child to support may not be adversely affected by a premarital agreement under Texas law. [Tex.Fam.C. Section 4.003]
It is not uncommon for prospective spouses who will reside in Texas after being married, to work with Texas family law attorneys to create their specialized premarital agreement, whether the parties marriage ceremony is to take place in Texas, out of state, or even in another country. Texas law also authorizes the parties to a premarital agreement to contract as to the choice of law (for example, the law of the State of Texas) that will govern their contract. Additionally, for prospective spouses marrying and residing elsewhere after their marriage other than in Texas, when Texas has a rational connection with the parties and their agreement, the parties’ choice-of-law provision in their premarital agreement will be given effect by the Courts, so long as it does not conflict with Texas public policy.