A prenuptial agreement protects your finances, secures your property, and offers clarity about your future. In Texas, where community property laws apply, couples must draw clear lines around assets and debts before conflict arises. Otherwise, they risk losing time, money, and control of their assets in court.
Texas law allows a wide range of terms in a prenup, but not everything goes. Some clauses break the rules entirely. Add the wrong one, and a judge might toss the whole agreement. Every couple needs to know the prenup restrictions in Texas before they sign.
What You Can Include in a Texas Prenup
Under the Texas Family Code, future spouses can agree on a wide range of financial matters before they get married. Commonly enforceable terms include:
- Property Division: Couples can decide what will be treated as separate vs. community property, and outline how assets or income will be divided if the marriage ends. This is especially helpful under Texas’s community property law.
- Spousal Support: A spousal support waiver in Texas is allowed, but only if it’s fair when signed and when enforced. If it leaves one spouse without basic needs, a court may intervene.
- Debt Allocation: You can agree on who will be responsible for debts, whether it’s a mortgage, business loan, or credit card balance.
- Estate Planning Protections: Prenups often work alongside wills or trusts to safeguard assets for children from prior relationships and clarify inheritance expectations.
These types of terms are typically valid as long as the agreement was voluntary and based on full financial disclosure.
What You Can’t Include in a Texas Prenup (Restrictions)
Some clauses are unenforceable, no matter how agreeable the couple may be. These are the most common prenuptial agreement limitations in Texas:
Child Custody or Support
Any attempt to lock in future parenting arrangements is not enforceable. Custody decisions must be based on the child’s best interests at the time of separation. A child custody prenup is invalid, and child support prenup clauses are unenforceable.
Unlawful or Unethical Terms
A prenup can’t ask either party to do something illegal or to ignore illegal behavior. Courts also reject terms that violate public policy, like financial penalties for infidelity or clauses that encourage divorce. These are considered prenup terms against public policy.
Lack of Financial Transparency
A prenup built on half-truths won’t stand. Full, honest Texas prenup financial disclosure is required. Leaving out key information—intentionally or not—can give a judge grounds to toss the agreement entirely.
Agreements Signed Under Pressure
Timing matters. If someone is pressured to sign just before the wedding or doesn’t have time to review the terms, that can trigger prenup invalidation grounds. Each party needs the opportunity to understand the contract and ideally consult their own attorney.
How Texas Courts Evaluate Prenup Enforceability
Not all prenups hold up in court. Judges reviewing prenup enforceability requirements look for a few key things:
- Voluntariness: A fair and voluntary prenup in Texas means each person willingly signed, with full awareness and without pressure.
- Fairness at the Time of Signing: Even if the terms seem fair when written, they must still be fair when enforced. A one-sided deal that leaves someone with nothing may be considered unconscionable.
- Disclosure and Competence: Were both parties clear-headed and fully informed? Did they understand what they were signing? Courts can void a prenup if either party didn’t know what they were agreeing to, or didn’t have the mental capacity to agree at all.
These standards come from the Texas Family Code prenup laws, which serve as the framework for evaluating every agreement.
Avoiding Common Mistakes
Some prenups fail not because of bad intentions, but because of avoidable errors. Here are a few prenup mistakes to avoid:
- Using a generic template that doesn’t reflect the details of your relationship
- Including invalid clauses about custody, personal behavior, or lifestyle choices
- Hiding financial details or assets
- Signing in a rush, without legal guidance or proper review
To avoid these pitfalls, it helps to work from a thorough Texas prenup checklist—one that includes full financial disclosures, legal review, and enough time to negotiate in good faith.
Review Before You Sign
A prenup can offer protection, predictability, and peace of mind—but only if it’s built to last. Terms that seem fair now could fall flat later if they don’t follow Texas law. That’s why reviewing your agreement with experienced legal counsel isn’t just smart—it’s essential.
The San Antonio pre- and postnuptial agreements lawyers at Higdon, Hardy & Zuflacht, L.L.P. draft prenups that reflect your goals, follow Texas law, and hold up in court. If you’re preparing or reviewing an agreement, we’ll flag the risks, clean up the language, and make sure it works for you, not just for the form. Call us today at (210) 349-9933 or contact us online.