What a Texas Marital Agreement Can and Cannot Do
Marital agreements are powerful, but their power has a defined shape. They reach broadly across property and finances and stop firmly at the rights of children. Knowing exactly where that line falls keeps an agreement focused on what it can actually accomplish and prevents wasted effort on clauses a court will ignore. This page maps the scope and the limits, so you can design an agreement that does real work and avoids the provisions that do none.
Property: broad. Children: off-limits.
The simplest way to remember the boundary: a marital agreement can decide almost anything about the spouses’ property and finances, but it cannot decide anything binding about a child’s support or custody.
The Broad Financial Reach
On property and money, marital agreements are flexible and far-reaching. A Texas agreement can characterize property as separate or community, decide how income and appreciation on property are treated, allocate debts between the spouses, address spousal support, govern what happens to property on divorce or at death, and protect specific assets such as a business or an expected inheritance. This is the heart of what these agreements do, and it is why they are valuable: within the financial sphere, the couple largely writes its own rules in place of the default community-property division.
The Hard Limit: Children
The firmest boundary involves children. A marital agreement cannot adversely affect a child’s right to support, and any provision attempting to fix child custody, possession, or child support is not binding on a court. Those questions are decided by the child’s best interest at the time they arise, under the framework explained in the child custody material, no matter what the parents agreed in advance. Parents simply cannot bargain away rights that belong to their child. An agreement may express intentions, but a court is free to disregard them where the child’s interest requires.
To try to get around the custody limitations of marital agreements, we have drafted liquidated damages clauses where a party who challenges the custody terms of a marital agreement has to pay a set amount of legal fees to the other conservator. These have not yet been tested in court.
Spousal Support vs. Child Support
It helps to separate the two kinds of support. Spousal support, or maintenance, is largely within the couple’s control: an agreement can generally set it, limit it, or waive it, subject to the enforceability rules. Child support is different in kind, because it belongs to the child rather than the parents, it cannot be waived or reduced to the child’s detriment by agreement. Keeping this distinction clear avoids a common mistake: assuming that because spouses can address support between themselves, they can also dispose of their child’s support. They cannot.
In reviewing the thousands of marital agreements that we have handled, one aspect of spousal support that can be baffling in what we like to think of is more modern and enlightened times has to do with property rights and spousal support/alimony rights being conferred to a woman by a man with the bearing of children as a prerequisite–no children, no property or support upon divorce. At least one lawyer here finds these terms to be disgusting and offensive and routinely advises women not to sign agreements with those terms.
Lifestyle and Conduct Clauses
Couples sometimes want to write in rules about behavior, fidelity, weight, chores, or penalties tied to the cause of a future divorce. In Texas, these so-called lifestyle clauses are generally unenforceable. An agreement cannot contain terms that violate public policy or criminal law, and courts disregard provisions designed to penalize or encourage divorce or to regulate the non-financial conduct of the marriage. The enforceable power of a marital agreement lies in property and financial arrangements, not in policing personal behavior, so effort spent on conduct clauses is usually effort wasted.
Designing Within the Lines
The practical takeaway is to aim a marital agreement where it is strong. Use it to characterize property, allocate debt, protect a business, coordinate with estate planning, and address spousal support, and leave child-related issues to be decided when and if they arise. An agreement built within these lines is both more useful and more durable, and it pairs naturally with attention to how the agreement is signed, which is the subject of the enforceability page.
Frequently Asked Questions
Want an agreement that does real work?
Knowing what belongs in an agreement, and what a court will ignore, is half the battle. Let’s build one aimed where it is strong.
This page provides general information about Texas law and is not legal advice for your specific situation. Reading it does not create an attorney-client relationship.