It is a common misconception that each party is required to separately consult a prenup lawyer before signing a prenuptial or postnuptial agreement. This is a misconception even among lawyers. Texas only requires that to be enforceable a premarital agreement must be written and signed by both parties (Texas Family Code § 4.002). The same applies to a postnup, referred to in Texas law as a partition and exchange agreement (Texas Family Code §4.104). These agreements are contracts and may be signed without both parties consulting a lawyer.
It is considered best practice for each party to have his or her own lawyer even if they have already agreed to the terms. Minimally, each party should consult their own lawyer to review the documents before signing. This ensures both parties understand everything and will make it difficult to later claim the documents were not fully understood or signed voluntarily.
Having A Separate Prenup Lawyer Is Recommended
The ways to get out of a prenuptial agreement are limited. Texas law intends the agreements to be enforceable. Texas Prenuptial agreements are legally unenforceable if either of the following is true:
- A party did not sign the agreement voluntarily. Or,
- 1) The agreement was “unconscionable” when it was signed and
2) before signing it the other party was not given a fair disclosure of the property or financial obligations of the other, did not waive such disclosure in writing, or could not have adequate knowledge of the property or financial obligations of the other party.
The same applies to a postnuptial agreement.
“Voluntary” is not defined as it applies to Texas marital agreements. An unsophisticated person, or one who understands English poorly, might claim that failure to understand the agreement means it was involuntary. This would usually be a difficult position to sustain, but if a judge or jury feels sorry for that person and wants to let him or her out of the agreement, it might be enough. To avoid this, most attorneys recommend that each spouse has a separate prenup lawyer. A fiancé who does not primarily speak English should consult a Texas prenup lawyer who speaks the person’s primary language.
The standard prenup package includes an acknowledgment that the other fiancé or spouse was advised to seek independent counsel and chose not to. The acknowledgment includes a statement that the person presenting the agreement offered money to the other party to consult a lawyer. This is only signed if the other party does not consult a lawyer.
The standard prenup package also includes a marital partition and exchange agreement. It is shorter than the prenup and is signed after the parties are married. Signing an agreement that affirms the prenup after the marriage has taken place makes it difficult to claim lack of voluntariness in signing the prenup.
If the spouse who did not seek the marital agreement consults a lawyer, that person must have a firm understanding of the reason for the consultation. It might be to have the agreement explained, to negotiate terms at the beginning, or to confirm it complies with what they already agreed to. A prenup lawyer might think negotiation is warranted and try to reopen discussions. It is reasonable to talk about this with the lawyer, but the person requesting the advice should be clear about the reason for the meeting. Otherwise, confusion can result in negotiation being re-opened when that was never the intent.
A lawyer might ask, “why bother getting married with a prenup?” or “why not divorce instead of signing a partition and exchange agreement?” The lawyer might point out that in death or divorce the person would be better off without the agreement. If the parties have already agreed on the terms and the consultation is to confirm the documents accurately express those terms, that should be made clear to the lawyer at the beginning. If only a vague discussion has occurred between the parties, the lawyer might explain basic law and issues to be resolved before a draft is written.
Although not required by Texas law, it is best for each person to have a lawyer, whether to negotiate the terms, explain the law, or just confirm the accuracy of the documents. Not having one does not invalidate the agreement, but might be a basis to claim it was not signed voluntarily. If either estate is substantial, then each party should have their own lawyer from the beginning to help negotiate the agreement and draft the documents.
