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Pre-Nuptial Agreements: Separating Myth From Fact

This article was written by Hance Law Group associate attorney Jonathan James.

Popular culture paints a negative stereotype of what a pre-nuptial agreement is and how it functions. We think of rich people trying to protect themselves from “gold-diggers,” or celebrities trying to create borders for marriages that they know won’t last forever.

In reality, the pre-nuptial agreements I’ve worked on have mostly been ones in which one party wants the agreement, and the other party is aware of why it’s being sought and okay with it. It’s ideal for couples who each come in with specific assets they want to keep separate through the marriage, and should they divorce, there’s a document that will determine what happens to those assets – saving them a courtroom battle or collaborative headache down the line.

Pre-nuptial agreements only need to involve the two people who are getting married, and once they sign the document, it’s up to them to have it factor into a divorce if they decide to go that route at any point in their marriage. While a pre-nuptial agreement doesn’t require the participation of lawyers, I strongly advise anyone seeking a pre-nuptial agreement to involve lawyers, in order to safeguard against the conditions under which it might be disallowed or found to be unenforceable in a divorce case.

In Texas, there’s a law prohibiting a pre-nuptial agreement from what’s legally known as “unconscionability” – essentially, it can’t appear so one-sided that it can’t, in good conscience, be considered fair. While a pre-nuptial agreement can protect one party’s wealth if the spouses have widely varying incomes, it can’t do so in such an imbalanced way as to violate this precept.

The pre-nuptial agreement has to also meet a standard of “voluntariness,” which makes when an agreement assigned almost as important as what’s in it. If a prenuptial agreement is signed a day or two before the wedding, for example, it could appear to a judge that it was produced with very little time for contemplation – perhaps as a condition for going through with the wedding with the whole family in town and thousands of dollars spent on the reception.

In addition to making sure that your agreement will meet those tests, the presence of lawyers will also help legitimize the process that led to the agreement in a judge’s eyes. Similar to a divorce case, the ethics rules do not allow one lawyer (or law firm) to represent both parties in the negotiations for a pre-nuptial agreement.

There’s one more advantage to working with lawyers on pre-nuptials: They’re not in love with either of you and therefore won’t be operating with love blinders on. They can best ask questions from the objective third-party perspective that helps you determine, should you divorce, how you’d want to go about that, and what decisions now would help minimize conflict. Before your wedding, you’re in a much better frame of mind about the distant possibility of divorce than if you actually find yourself in the midst of one.