Prenuptial agreements continue to become more common, especially among couples where at least one party owns or expects significant assets. Generally, a valid prenuptial agreement can serve to determine property division in a divorce.

People on the brink of divorce often want to know whether the prenup they signed all these years ago will still hold up in court. Whether you are hoping to enforce your agreement or challenge it, it can help to know some basic principles that can affect this issue.

Requirements for validity

In Texas, a valid prenup must be in writing and bear the signatures of both parties. Both parties must sign voluntarily, after full disclosure of assets and liabilities on both sides. To challenge an agreement, a party would have to show that he or she did not sign voluntarily or that the other party hid material information about his or her financial situation.

Defining voluntariness

The issues of voluntariness and disclosure can present various complexities. Threatening violence or getting the other party intoxicated are some examples of actions likely to render a resulting signature involuntary. Other types of pressure can be harder to define. Texas courts generally tend to hold that only threats of performing an action the party has no legal right to perform would count as duress sufficient to invalidate the agreement. Thus, threats to cancel the wedding would not suffice.

Purposely hiding assets or liabilities may count as rising to a level of fraudulence sufficient to invalidate an agreement. Courts usually look at the surrounding circumstances to see whether one party purposely concealed or misrepresented information that would likely have affected the other party’s decision to sign. When both parties have legal representation, and there is no indication that the representation was not competent, courts are unlikely to invalidate the agreement.

Unconscionability

Unconscionability is the one other ground on which a court can invalidate a prenup. The unconscionability must exist at the time of the signing, not of the divorce. It can be difficult to define unconscionability in general; courts tend to find it in cases where one party behaved fraudulently. A lopsided or unfair agreement can still be valid.