Most Texas divorce lawyers will tell clients that signing a prenuptial agreement is a good idea. It can prevent much ugly haggling if the couple should decide to get a divorce, and it can provide peace of mind knowing that basic issues of property division have been settled. Unfortunately, one spouse may discover that the prenuptial agreement that the couple signed before their marriage was based upon concealment of assets. Can that agreement be voided in the divorce? Yes, but under a limited set of circumstances.

In order to be enforceable, a prenuptial agreement must be signed by both parties. Occasionally, one party will forge the other’s signature. If the forgery can be proved, the agreement is unenforceable. The agreement must be signed by both parties before the marriage is formalized. If the party against whom enforcement is sought can prove that at least one signature was added after the wedding, the agreement is likewise unenforceable.

Perhaps the most powerful reason for invalidating a prenuptial agreement is the lack of good faith by one of the parties. This absence of good faith can be the failure to disclose marital assets before the agreement is executed. A similar reason is the failure of one spouse to make a complete and accurate disclosure of assets before the marriage. A common response to this argument is that the spouse seeking invalidation waived the right to a complete and accurate disclosure of assets; this argument will fail if the alleged waiver was not in writing and was not signed before the marriage.

The law gives the judge in a divorce broad discretion to enforce or invalidate a premarital agreement if the court believes that the terms of the agreement are unconscionable. An unconscionable premarital agreement can take many forms, but the most common variant is a systematic hiding of assets, perhaps in an off-shore bank account.

Anyone who is concerned that their spouse may have engaged in any of the actions described above may wish to consult an experienced divorce lawyer for an evaluation of the evidence and an estimate of the likelihood of invalidating the premarital agreement.