Approximately 175,000 marriages take place in Texas every year. Many of those couples will have signed a premarital agreement concerning how their assets will be divided in case they are one of the 82,000 couples who annually divorce.
Under Texas law, a premarital agreement is enforceable without consideration if it is signed by both parties.
Criteria for a valid premarital agreement
- Both parties must voluntarily sign the agreement without any coercion. The more time that passes between the signing of the agreement and the actual marriage ceremony, the more likely it is that it was not signed under duress.
- There must be full disclosure of assets owned at the time the agreement was prepared and signed, and full disclosure about expectations of increases in the value of the property or in each party’s income.
- If there was full disclosure of assets, the court will not listen to a claim that the agreement was not fair. It does not have to be fair, but only provide full disclosure. It may have been a bad decision for one party to sign it, but that is not a legal issue.
- Experts recommend that both parties seek the advice of family law attorneys when drafting a premarital agreement. Each situation is unique and deserves its own individual analysis.
Drafting Premarital Agreements in an International Context
If you are planning to move overseas or are about to marry someone who is a national of a foreign country, it might help entering into a premarital contract laying out terms for simplifying international legal issues. Consider the following tips:
- Try to include a choice-of-law clause in the premarital agreement that applies to the construction of the agreement and the substantive law of the selected forum. The parties may also select a dispute resolution process such as arbitration or mediation.
- To increase the likelihood that a foreign marital agreement will be enforceable in the U.S. the parties should be represented by independent legal counsel. Do NOT rely only on a notary.
- Your attorney should have the premarital agreement translated if one of the parties does not speak the language of the country and require that this party acknowledge in writing that he or she understands the meaning of the agreement.
- Be sure that both parties have fairly and reasonably disclosed all assets and liabilities prior to the signing of the agreement.
- Videotape the execution of the agreement and record the parties stating that this agreement was not procured by duress or fraud, that they understood the contract, and that they had the capacity to sign the contract.
- If possible, get an American premarital agreement/contract, especially if you anticipate moving to the U.S.