While it is not the most comfortable thing to consider before or during the marriage, premarital and postnuptial agreements are critical to establishing each partner’s property and financial rights. Texas law provides a mechanism for couples in a marriage to accomplish the same results that could have been created in a premarital agreement. These post-nuptial agreements are often referred to as “marital property agreements.” There is a general understanding that there are many reasons why a couple might want to change the character of their marital assets during their marriage. Accordingly, the formalities and enforcement rules for post-nuptial agreements are, in effect, the same as for premarital agreements. However, Texas post-nuptial agreements are often prone to issues surrounding unconscionability and involuntariness. TEXAS COURT FINDS POST-NUPTIAL PARTIAL AND EXCHANGE AGREEMENT INVALID AND UNENFORCEABLE In one of the more recent published opinions regarding post-nuptial agreements, a Texas appeals court affirmed a trial court’s judgment finding that a post-nuptial Partition and Exchange Agreement (PEA) was not valid or enforceable. COUPLE ENTERS INTO MARITAL PROPERTY AGREEMENT The couple executed a premarital agreement before their marriage. A relevant provision in the premarital agreement included the parties’ intent to create a community property estate during their marriage. Shortly after their marriage, the couple executed a second document that ratified their premarital agreement. Several years later, the husband hired an attorney to draft a Partition and Exchange Agreement (PEA), which provided that no community estate will arise during the remainder of the couple’s marriage. DIVORCE PROCEEDINGS The wife filed for divorce and sought to enforce the premarital agreement. In response, the husband sought to enforce the premarital agreement and PEA. The wife argued that the husband forged her signature and moved to exclude the husband’s handwriting expert. The trial court excluded the husband’s expert witness and found that the PEA was unenforceable. APPEAL OF THE TRIAL COURT’S RULING On appeal, the husband asserted five primary issues arguing that the trial court abused its discretion in excluding expert testimony and finding that the PEA was invalid and unenforceable. VALIDITY OF EXPERT IN TEXAS TRIALS The Texas appeals court explained that trial courts must ensure that those who claim to be experts have expertise about the subject to which they are offering an opinion. The court reasoned that, in this case, the record contains conflicting substantive and probative character to support the trial court’s decision to exclude the witness based on his qualifications. The court clarified that a trial court does not abuse its discretion as long as some evidence exists to support its decision. Here, the record contains evidence of a federal district court finding that the expert lacked the qualifications to testify as a handwriting expert. Thus, the court concluded that the trial court did not abuse its discretion. EVIDENCE SUGGESTS WIFE DID NOT SIGN P.E.A. In its opinion, the appeals court explained that under Tex. Fam. Code Ann. § 4.102, a PEA is not enforceable if the party against whom enforcement is sought proves that they did not voluntarily sign the agreement. Here, the record includes evidence of communication between the parties in which the wife refuses to sign the PEA and suggests that the husband is bullying her into an agreement. Further, the record indicated neither party could explain the inclusion of an unfamiliar attorney’s name under the wife’s signature. Thus, the court found that the trial court had more than a “scintilla of evidence” to support its ruling that the PEA was invalid. As such, the Texas court of appeals affirmed the trial court’s ruling in favor of the wife. FORMALITY, MANAGEMENT, AND ENFORCEABILITY OF POST-NUPTIAL AGREEMENTS IN TEXAS The abovementioned case highlights the issues that couples experience when executing and enforcing post-nuptial agreements in Texas. These agreements must comply with the formalities, management, and enforceability rules under Tex. Fam. Code § 4.203, § 4.204 and 4.205. Couples contemplating entering or exiting a marriage should consult an attorney to discuss these complex agreements. SPEAK WITH AN EXPERIENCED FAMILY LAW ATTORNEY FOR ASSISTANCE DRAFTING YOUR POSTNUPTIAL AGREEMENT If you are currently married and interested in learning more about postnuptial agreements, reach out to the McClure Law Group for immediate assistance. At our Dallas divorce and family law firm, we have extensive experience drafting enforceable and practical agreements that provide clarity and protect our clients’ interests. To learn more, call the offices of McClure Law Group at 214.692.8200 to schedule a no-obligation consultation.
Posted in: Divorce and Post-marital Agreement
Published on: February 18, 2023
Updated: April 19, 2023 1:54 pm
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