Issues That Cannot Be Stipulated In A Texas Prenup

Prenup Attorney

Prenuptial agreements, often referred to as “prenups,” are legal documents designed to outline the financial arrangements between spouses in the event of divorce or death. While these agreements provide clarity and protection for both parties entering a marriage, there are limitations to what can be stipulated in a Texas prenuptial agreement.

It is crucial to understand these limitations, which affect the validity and enforceability of the agreement. This article explores those issues that cannot be stipulated in a Texas prenuptial agreement, providing clarity to those considering or currently drafting such an agreement.

Child Custody and Child Support

One of the most critical limitations of a Texas prenuptial agreement is that it cannot address child custody or child support matters. Texas family courts are responsible for determining child custody arrangements and child support payments based on the best interests of the child at the time of divorce or separation. Any attempt to include child custody or support provisions in a prenuptial agreement will likely render those provisions unenforceable. If those terms are so intertwined with others in your agreement, beware that those could also be invalidated.

Violation of Public Policy

Texas law prohibits prenuptial agreements from containing provisions that violate public policy. For example, an agreement that encourages or incentivizes illegal activities would be considered against public policy (think: all money embezzled by a party is that person’s separate property, or all funds successfully saved by defrauding the IRS are awarded 75% to a party). Additionally, any clauses that waive spousal support in a way that leaves one spouse destitute could also be invalidated by a court.

Personal Matters

Prenuptial agreements are primarily focused on financial matters and potential disputes related to property. Prenups should not delve too deeply into personal issues such as household chores, intimate affairs, or lifestyle choices. These personal matters generally fall outside the scope of what is legally enforceable in a prenuptial agreement.

Waiver of the Right to Challenge the Agreement

While parties can agree to specific terms in a prenuptial agreement, they cannot outright waive their right to challenge the agreement in the future. Texas law generally allows either party to later challenge the prenup’s validity based on coercion, duress, lack of disclosure, or unconscionability—but this does not guarantee success of such a challenge.

Violation of Fairness and Equity

Prenuptial agreements are usually intended to be fair and equitable to both parties. Provisions that are excessively one-sided or unfairly disadvantage one spouse may be deemed excessive or immoral and, consequently, unenforceable by a court. Do remember that “fairness” and “equity” are subjective terms; what may be objectively unfair or inequitable could be the opposite in a particular set of circumstances.

Retirement Benefits

Texas law prohibits prenuptial agreements from altering or affecting the distribution of certain retirement benefits, such as those governed by the Employee Retirement Income Security Act (“ERISA”). ERISA has specific requirements regarding the designation of beneficiaries, which cannot be changed through a prenuptial agreement.


While prenuptial agreements can provide invaluable protection and clarity for one or both spouses, it remains crucial to know their limitations. Legal matters such as child custody, child support, personal matters, illegal activities, and a waiver of certain retirement benefits cannot generally be stipulated in a Texas prenuptial agreement.

Therefore, working closely with an experienced Dallas attorney who handles prenuptial agreements is essential to ensure that your agreement complies with state laws—and will be enforceable in court should it become needed. By adhering to these limitations and crafting a detailed, fair, and comprehensive agreement, both parties can enter into their marriage with greater peace of mind regarding their financial future.

Contact Our Dallas Prenup Attorneys For Exceptional Legal Assistance

Do you have concerns or questions about crafting a valid prenuptial agreement in Texas? Seek professional guidance and legal support at Orsinger, Nelson, Downing & Anderson. Call our dedicated Dallas prenup attorneys at (214) 273-2400 today to schedule a confidential case review.

We are ready to help you navigate the complexities of prenuptial agreements while ensuring your rights and interests are protected. Don’t leave your financial future to chance—contact Orsinger, Nelson, Downing & Anderson today.