What Makes a Prenup Unconscionable in Texas?

It may not be romantic, but a prenuptial agreement often makes financial sense. From a strictly legal standpoint, a prenuptial (or post-nuptial) agreement is a binding legal contract entered into by two parties in contemplation of marriage. And like most contracts, Texas law strongly favors the enforcement of prenuptial agreements, even if one spouse later has second thoughts or regrets.

That does not mean that prenuptial agreements are always enforceable. Section 4.006 of the Texas Family Code creates two exceptions to the general rule in favor of enforcement. The first is that a prenuptial is enforceable if the party against whom enforcement is sought did not sign the agreement voluntarily. In other words, if you force or coerce your spouse into signing a prenup, you cannot later demand a judge enforce the terms.

The second exception is a bit more complicated. A prenuptial agreement is invalid if if “was unconscionable when it was signed,” and the spouse seeking to invalidate the agreement did not:

• receive a fair and reasonable disclosure of the other spouse’s property and debts beforehand;
• did not voluntarily waive their right–in writing–to such disclosure; and
• did not know, or reasonably could have known, about the other spouse’s property and debts beforehand.

Unfair Does Not Mean Unenforceable

But what exactly makes a prenuptial agreement “unconscionable.” Well, Section 4.006 does not say. Indeed, neither the Texas legislature nor any Texas appellate court has ever provided an exact definition of “unconscionability.” So it is left to trial courts to make that determination on a case-by-case basis.

In general, a court will look at a number of factors when assessing unconscionability, such as the maturity and age of the spouses, their respective business backgrounds and education levels, and their prior motivations (such as wanting to protect their children). But again, it is critical to note that a court will not find a prenuptial agreement “unconscionable” just because it tends to favor one spouse over the other or the spouse opposing enforcement simply changed their mind. Put another way, a judge will not reject a prenuptial agreement just because it seems unwise or ill-advised.

A recent Texas appeals court decision, McDonald v. McDonald, provides a practical illustration of what we are talking about. In this divorce case, a husband and wife married in 1968, divorced in 1974, and following multiple additional marriages and divorces on both sides, they remarried in 2018.

Actually, it was not quite that simple. According to court records, the husband and wife planned to remarry immediately after the husband finalized his most recent divorce. But at one point, the wife apparently got tired of waiting and informed the husband–via text message–that she decided to re-marry another one of her ex-husbands instead. A month later, she had a change of heart and decided to go through with the re-marriage to the husband.

The husband was still willing to remarry the wife. But he asked her to sign a prenuptial agreement. The husband then drafted a simple prenuptial agreement without the assistance of an attorney and presented it to the wife. At the time, the couple lived together in a house in Fort Worth. The prenup specified that in the event of divorce, all of the equity from the house would go to the husband. This also applied to any new house they bought from the proceeds of selling the Fort Worth house.

The parties signed the prenuptial agreement eight days before their remarriage. Approximately two years later, the couple sold the Fort Worth house and used the proceeds to make a down payment on a new home in Crowley, Texas.

A year later, the wife moved out and reunited with another one of her ex-husbands. The wife subsequently filed for divorce. She also filed a motion to declare the prenuptial agreement unconscionable. The trial court declined to do so. Following a bench trial in the divorce case, the judge enforced the prenuptial agreement and awarded the husband the Crowley home as his sole property.

The Court of Appeals upheld the decision. It noted that the parties entered into the prenuptial agreement on roughly equal footing–they were “nearly identical in age and have both been married multiple times, including twice to each other”–and neither had a particular advantage when it came to business experience or education. More to the point, the husband had a valid motive in seeking the prenup, namely that the wife had previously divorced him and tried to back out of their second marriage a month earlier.

The appellate court further dismissed the wife’s claims the prenup was unfair and that she never read it before signing. First, a prenuptial is still enforceable even if it may be unfair. And the wife chose not to read the agreement before signing it. She was not coerced or tricked into signing it. The reality was that she could have taken the time to read it–and for that matter consult with an attorney beforehand.

Contact League City Family Law Attorney Tad Nelson Today

If anything, a key lesson from the above case is that it is in the interests of both spouses to seek independent advice from a qualified Galveston family law attorney before signing any prenuptial or post-nuptial agreement. Contact the Law Offices of Tad Nelson & Associates today to schedule a consultation.