Property Agreements

Premarital, partition-and-exchange, and conversion agreements (collectively, “marital agreements”) can generally cover any matter, so long as they do not (1) vio-late public policy or a statute imposing criminal penalties; (2) adversely affect a child’s right to support; or (3) defraud a creditor. See Tex. Fam. Code §§ 4.003(a)(8), (b), 4.106, 4.206. The agreements can include provisions for child support, but if the agreement is not in the best interest of the child, the provision can be disregarded. See Radtke v. Radtke, 521 S.W.2d 749, 751 (Tex. App.—Houston [14th Dist.] 1975, no writ).

A premarital agreement must be signed before marriage. See Tex. Fam. Code § 4.002; Ahmed v. Ahmed, 261 S.W.3d 190, 194 (Tex. App.—Houston [14th Dist.] 1994, no writ). The agreement can be revoked during marriage by a written agree-ment signed by both parties. Tex. Fam. Code § 4.005. Partition-and-exchange and conversion agreements can be signed at any time during marriage to change the char-acter of marital property. Tex. Const. art 16 § 15; Tex. Fam. Code §§ 4.102, 4.203.

If a premarital agreement fully defines how the community estate is to be di-vided, Texas Family Code Section 7.001 (just and right divisions generally) does not apply. Hutcherson v. Hutcherson, 731 S.W.3d 946, 961 (Tex. App.—Austin 2026, no pet.). In Hutcherson, the wife pleaded for claims of constructive fraud and reimburse-ment; however, those claims were unavailable to her because of the premarital agreement because the parties had already agreed on a just and right division. Id. But, the agreement did not preclude her right to receive Chapter 8 spousal maintenance after presenting evidence to satisfy the Code’s requirements. Id. 971.

While a premarital agreement does not foreclose the right to seek Chapter 8 spousal maintenance, an agreement cannot bypass the requirements of Chapter 8. McCartney v. McCartney, 720 S.W.3d 789, 804–05 (Tex. App.—Houston [14th Dist.] 2025, no pet.). Without the requisite Chapter 8 findings, any agreement to post-divorce monetary obligations is simply a contractual agreement and cannot be en-forced by contempt. Id.

Marital agreements must be in writing, be signed by the parties, and are en-forceable without consideration. Tex. Fam. Code §§ 4.002, 4.104, 4.203. The par-ties must be afforded a full financial disclosure before signing. Tex. Fam. Code §§ 4.006(a)(2), 4.105(a)(2)(A), 4.205(a)(2). If the agreement affects the ownership of real property, it should be sworn or acknowledged, so it can be filed in the county records where the property is located. See Tex. Prop. Code §§ 11.001, 12.001(b).

A partition-and-exchange agreement (changing community property to sepa-rate) should clearly specify the parties’ intent, preferably using the words “partition” or “exchange.” Byrnes v. Byrnes, 19 S.W.3d 556, 559 (Tex. App.—Fort Worth 2000, no pet.). The agreement must have a present effect and not require future action. LaPree v. LaPree, No. 03-20-00465-CV, 2022 WL 548285, at *3 (Tex. App.—Austin 2022, no pet.) (mem. op.); see also Dokmanovic v. Schwarz, 880 S.W.2d 272, 275–76 (Tex. App.—Houston [14th Dist.] 1994, no writ). A partition and exchange agree-ment does not require court approval. Diggs v. Diggs, No. 14-11-00854-CV, 2013 WL 3580424 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (mem. op.). Like-wise, a conversion agreement (changing separate property to community) should clearly state the intent of the agreement, preferably—but not necessarily—using the term “conversion.” See e.g., Alonso v. Alvarez, 409 S.W.3d 754, 758 (Tex. App.—San Antonio 2013, pet. denied).

Marital agreements are presumptively enforceable, and the contestant to the agreement bears the burden to prove the agreement is not enforceable. Abdelwahed v. Hassanin, No. 14-24-00880-CV, 2026 WL 275915, at *2 (Tex. App.—Houston [14th Dist.] 2026, no pet.) (mem. op.); Choudhury v. Choudhury, No. 14-23-00825-CV; 2025 WL 2399148 (Tex. App.—Houston [14th Dist.] 2025, no pet.) (mem. op.); Osorno v. Osorno, 76 S.W.3d 509, 510 (Tex. App.—Houston [14th Dist.] 2002, no pet.); Marsh v. March, 949 S.W.2d 734, 739 (Tex. App.—Houston [14th Dist.] 1997, no writ); see Tex. Fam. Code §§ 4.006(a), 4.105(a), 4.205(b). To establish a premari-tal or partition-and-exchange agreement is unenforceable, the contestant must show that the agreement was (1) not signed voluntarily or (2) unconscionable when signed and the contestant (a) did not receive a full disclosure, (b) did not voluntarily waive disclosure, or (c) did not have or could not have acquired knowledge of the other party’s financial obligations and property. Tex. Fam. Code §§ 4.006, 4.105; see In re Marriage of Potyondy, No. 05-24-00312-CV, 2026 WL 1214429, at *5 (Tex. App.—Dallas 2026, no pet.) (mem. op.) (on reh’g). To establish a conversion agreement is unenforceable, the contestant must show that the agreement was not signed voluntari-ly or that the contestant did not receive a full and fair disclosure of the legal effect of the agreement. Tex. Fam. Code § 4.205.

In Abdelwahed, the husband challenged an agreement that he would return gold to wife pursuant to their Egyptian marriage agreement. 2026 WL 275915, at *1. It is Texas public policy to enforce premarital agreements. Id. at *2. Because the husband failed to rebut the resumption of enforceability, the trial court did not err in requir-ing the husband to return the gold to the wife. Id.

In Choudhury, a wife challenged a postnuptial agreement, claiming the agree-ment was signed involuntarily or was unconscionable when signed. 2025 WL 2399148, at *1. The wife argued that the husband’s immigration threats amounted to fraudulent inducement, duress, or overreaching. Id. at *5. However, the husband had a legal right to report suspected immigration violations to immigration authorities. Id. For duress to be a contract defense, it must consist of a threat to do something the threatening party has no legal right to do. Id. Additionally, while the wife claimed the husband “forbade” her from talking to an attorney, the evidence showed she did con-tact her lawyer while the agreement was being drafted. Id. The wife also argued the husband breached his fiduciary duty to her by failing to disclose values of financial ac-counts. Id. at *7. While the husband may have breached his fiduciary duty, Texas public policy favors enforcing agreement. Id. at *8. There was no evidence the hus-band was acting as the wife’s attorney or financial advisor at any point, and given the totality of the circumstances, the wife failed to establish involuntary execution. Id. With respect to the wife’s unconscionability argument, she failed to present evidence of values at the time of execution. Id. at *10. Without that information, the court could not determine a true valuation of disproportionality or one-sidedness. Id. Moreover, “parties are free to execute agreements as they see fit, and unfairness is not a material consideration to the enforceability of an agreement.” Id. at *9.

In Potyondy, the parties signed a premarital agreement when they were about 30 years old. 2026 WL 1214429, at *2 n.4. At the time of marriage, the wife had signif-icant debt, and the husband had savings. Id. at *1. The agreement took this financial situation into account by reimbursing the husband in the event of a divorce. Id. While the trial court found the agreement to be unconscionably unenforceable, the trial court did not address the question of adequate disclosures. Id. at *4. The statute per-mits setting aside a premarital agreement if it is unconscionable and the disclosure requirements were not satisfied. Id. Here, the wife failed to establish that she “did not have, or reasonably could not have had, adequate knowledge of the property or finan-cial obligations of” the husband when making the agreement. Id. at *5. Accordingly, the trial court erred by failing to enforce the agreement. Id. at *7.

Voluntariness is not defined by the Family Code, and the issue of voluntariness is addressed through a case-by-case factual determination. See Moore v. Moore, 383 S.W.3d 190, 195 (Tex. App.—Dallas 2012, pet. denied). Thus, if voluntariness is at issue, the question of enforceability is likely not best addressed through summary judgment because there would necessarily be a genuine issue of material fact. Howev-er, a preliminary evidentiary hearing to address this question would help limit the scope of issues at mediation or final trial.

A party challenging a conversion agreement, unlike the other two types of mar-ital agreements, is not limited to the statutory grounds and can rely on other com-mon-law defenses to enforceability. Compare Tex. Fam. Code §§ 4.006, 40105 with § 4.205. However, notwithstanding the Family Code’s limitation on defenses for pre-marital and partition-and-exchange agreements, common-law precepts, including du-ress, lack of capacity, fraud, and undue influence could bear upon the ultimate de-termination of voluntariness. Sheshunoff v. Sheshunoff, 172 S.W.3d 686, 689 (Tex. App.—Austin 2005, pet. denied).

Further, although the premarital and partition-and-exchange statutes state that the question of unconscionability shall be determined as a matter of law, courts are also instructed to consider a number of factors about which there may be a factual dispute, such as the parties’ general backgrounds and particular needs; presence of deception, overreaching, and sharp business practices; economic circumstances of the parties; and the relative acumen, knowledge, education, and financial abilities of the parties. See Tex. Fam. Code § 4.006(b); Ski River Dev., Inc. v. McCalla, 167 S.W.3d 121, 136 (Tex. App.—Waco 2005, pet. denied); In re Rangel, 45 S.W.3d 783, 786 (Tex. App.—Waco 2001, orig. proceeding); El Paso Nat. Gas Co. v. Minco Oil & Gas Co., 964 S.W.2d 54, 61 (Tex. App.—Amarillo 1997); Fanning v. Fanning, 828 S.W.2d 135, 146 (Tex. App.—Waco 1992, writ denied) When assessing the en-forceability of a premarital agreement, the courts will look at the “entire atmosphere” surrounding the execution of the agreement. McDonald v. McDonald, No. 02-22-00446-CV, 2023 WL 3878990, at *3 (Tex. App.—Fort Worth 2023, no pet.) (mem. op.). If the parties have relatively equal backgrounds and bargaining power, even a quick handwritten agreement without attorney oversight can be found enforceable, even if the result might be considered “unfair” by one of the parties. See McDonald, 2023 WL 3878990, at *4 (awarding husband 100% of marital residence pursuant to premarital agreement drafted by him).

While Texas courts are particularly hesitant to find premarital agreements un-enforceable, they have closely scrutinized property agreements made by spouses dur-ing marriage because of the fiduciary duty that exists between spouses (unlike soon-to-be spouses). See Johnson v. Peckham, 120 S.W.2d 786, 787–88 (1938); Miller v. Mil-ler, 700 S.W.2d 941, 945–47 (Tex. App.—Dallas 1985, writ ref’d n.r.e.); Bohn v. Bohn, 455 S.W.2d 401, 405 (Tex. App.—Houston [1st Dist.] 1970, writ dism’d w.o.j.).