Kevin Costner is getting divorced after 19 years of marriage.  To say that the divorce has been contentious to date would be an understatement.  It seems that nearly every week a new article appears on Yahoo! or other tabloids reporting on the intimate details of their divorce suit.  Costner’s estranged wife, Christine, has alleged that Costner informed his children of the divorce via a Zoom call, and she has purportedly refused to vacate the marital residence (a residence purchased by Costner prior to the parties’ marriage) despite a premarital agreement mandating the same.  Costner, on the other hand, has sought to enforce the terms of the premarital agreement and force Christine to move out without any other agreements in place, claiming that Christine’s request for support is predicated on her wants and not the needs of their children.  What Christine ultimately receives in terms of alimony and child support remains to be seen, but we now know that Christine will have to abide by at least one provision of the premarital agreement.  Just yesterday, a judge ordered Christine to vacate the marital residence by the end of this month – a huge victory for Costner and one that sheds light on the enforceability of premarital agreements. 

Without fail, each month I have several potential new clients (PNCs) who have signed premarital agreements and do not want those provisions to be enforced.  Prior to those meetings, the PNCs have inevitably scoured Google and found various opinion articles purporting that such agreements are often overturned and rarely enforced.  Some have claimed that their agreements are not enforceable because they were unrepresented by counsel, or their attorneys did not sign the agreement itself.  Others have claimed they were under duress because their spouses would not have married them otherwise.  The harsh reality for most of these potential clients, at least in Texas, is that premarital agreements are generally enforced and are presumptively valid, meaning it becomes their burden to prove a reason as to why the agreement should not be enforced. 

In Texas, the formal requirements of a premarital agreement are straightforward – it must be in writing and signed by both parties.  If a premarital agreement meets those requirements, it must be enforced unless the party contesting the agreement proves one of the following:

(1)          the contesting party did not sign the agreement voluntarily; or

(2)          the agreement was unconscionable when signed and before signing the agreement the parties did not have a reasonable disclosure of property and did not voluntarily or expressly waive such disclosure.

Texas has a very strong public policy favoring the freedom to contract, with those contracts being enforced absent specific and often extreme circumstances.  The terms and conditions that can be contained in a premarital agreement are also vast and include, but are not limited to: altering the rights and obligations of the parties; changing the character of property; eliminating the creation of community or marital property; vacating of certain property in the event of divorce; or waiving of temporary or final alimony/spousal support.  Given the same, a spouse may be left with little to nothing in terms of support in the event of a divorce, making a challenge to the premarital agreement all that more enticing.

For those challenging premarital agreements, neither the Texas Family Code nor the few cases that have actually resulted in a voided premarital agreement are helpful.  The Texas Family Code does not define voluntariness and there are very few cases addressing what voluntariness actually means in terms of challenging a premarital agreement, which only complicates matters more for those litigants seeking to challenge the enforceability of these agreements.  In terms of unconscionability, the fact that a litigant may have signed the premarital agreement shortly prior to a wedding is not in and of itself dispositive and many courts have still enforced premarital agreements that were signed even on the eve of a wedding.  Nor will a Texas court set aside a premarital agreement simply because one spouse controlled the bargaining process or the agreement that was signed was inequitable.  Still further, threats of canceling the wedding without signature have generally been found to be insufficient to invalidate a premarital agreement.  Given Texas courts’ proclivity to enforcing premarital agreements, one must wonder, can a premarital agreement ever be successfully challenged in Texas?

The answer is a qualified yes and depends on the facts of each case.  The limited cases where a premarital agreement has been successfully challenged in Texas include facts involving gross misrepresentations in financial disclosures (i.e. fraud); threats of unlawful actions; limited mental capacity of one of the parties; depravation of one’s right to counsel (this must be more than “I wasn’t represented by an attorney”); the non-bargaining ability of one party; the agreement is illegal or against public policy; or the presence of fraud or mistake.  Each of these factors are considered along with the maturity and age of the contracting parties, business backgrounds, education levels, prior marriages, and other motivations. 

Caution should always be exercised when determining whether to challenge a premarital agreement and careful attention should be given to the terms contained therein.  Many premarital agreements, at least the ones that I draft, contain these fee-shifting agreements, meaning that if the challenging party loses, he or she is fully responsible for the fees of both parties.  Others may provide for a sum of money to be awarded to a spouse, with such provision becoming null and void in the event of a challenge to the enforceability of the agreement.  Still others may contain choice of law provisions, meaning that warring spouses in Texas could be subject to the laws of another state or foreign jurisdiction in determining the enforceability of a premarital agreement. 

Take Costner’s estranged wife, for example. Reportedly, by challenging the premarital agreement, Christine may lose any and all rights to receive a cash payout of $1,500,000.00 and any other property rights from Costner set forth in their premarital agreement simply by challenging the same. Even further, Christine may be on the hook for all of Costner’s legal fees under a fee-shifting provision contained in their premarital agreement, which will in all likelihood be substantial.

Regardless of whether you are seeking to enforce a premarital agreement, challenge one, or enter into one before your marriage, it is essential that you consult with an attorney adept at handling these types of matters in your respective jurisdiction.