When Will a Prenuptial Agreement Not be Enforced?

When Will a Prenuptial Agreement Not be Enforced?


Premarital or prenuptial agreements are a common part of marriage and divorce these days. A prenup may be a good idea when one spouse is remarrying or brings significant property or debt into the marriage. As a general rule, a premarital agreement is enforceable under Texas law.

Of course, every rule has its exceptions. Under the Texas Family Code, a prenuptial agreement cannot be enforced against a spouse who did not sign the agreement “voluntarily.” Alternatively, a judge may declare the terms of the premarital agreement “unconscionable” if all of the following conditions apply:

  • One spouse did not receive a “fair and reasonable disclosure” of the other spouse’s assets or debts prior to signing the agreement.
  • That spouse did not waive his or her right to receive such a disclosure in writing.
  • That spouse “did not have, or reasonably could not have had, adequate knowledge” of the other spouse’s finances beforehand.

Judge Invalidates Prenup Signed by Wife Under Threat of Deportation

To give an illustration of how these rules work in practice, let’s review a recent decision from a Texas appeals court in Houston, Kozera v. Velemir, in which a judge refused to enforce a prenup after deciding it was both unconscionable and not voluntarily signed by one spouse.

The husband and wife in this case first met on a cruise ship. The husband lived in the U.S. at the time, while the wife was a Serbian national working on the ship. The husband later invited the wife to visit him in the U.S.

The wife entered the U.S. on a fiancé visa, which meant the couple needed to marry within 90 days. On the day of the wedding–about a week before the visa expired–the husband presented the wife with a prenup for her to sign. According to the wife, there were no witnesses or legal counsel present. The wife later testified she “did not participate in drafting the agreement and had not seen it before she signed it.” Nor did the husband make any disclosure regarding his finances to the wife, although she had “some awareness” of his assets. The wife did not consult with an attorney before signing the prenup because she “was completely financially dependent” on the husband and could not afford to hire a lawyer on her own. Finally, the premarital agreement was drafted in English, which was not the wife’s native language.

The husband offered a somewhat different account of what happened. He claimed the couple drafted the agreement together and signed it before a Notary Public. He also said he made a full disclosure of his finances as part of the process for obtaining the wife’s visa.

The judge ultimately found the wife’s account more believable. The court found the prenup “unconscionable when signed,” Furthermore, the wife’s signature was not voluntary as she was acting under the threat of deportation if she did not marry the husband. The husband appealed the judge’s decision, but the Texas 14th District Court of Appeals let the trial court’s ruling stand.

Speak with a Qualified Dallas Family Law Attorney

A prenuptial agreement is a contract. As with any contract, it is always best for both sides to be represented by qualified counsel who can review the agreement and ensure it fully complies with Texas law. If you need assistance drafting or reviewing a premarital agreement, the experienced Dallas family law attorneys at Bennett, Weston, LaJone & Turner, P.C. can help  Call (214) 691-1776 or (888) 991-1776 today to schedule an initial consultation.

2021-03-31T08:20:10-05:00January 15th, 2019|Estate Planning, Family Law|
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