Sally Svelte was just wild about Harry. They agreed to exchange traditional wedding vows – with just a couple of additions written into a prenuptial agreement.

Harry, smitten by Sally’s slender 120 pound figure and her famous Thanksgiving Holiday Pecan Pie, proposed that her weight must stay at 120 pounds.  The agreed contractual penalty for any excess?  $500 for each additional pound.

Not to be outdone, Sally suggested that Harry limit his Sunday football watching with friends to one game a week.  Sally also insisted that Harry curb his tongue around his in-laws.  His penalty for a violation?  $10,000. Both penalties were agreed to be paid from the violators’ separate property.

Is their prenuptial agreement enforceable?  Most likely.

Texas law recognizes all parties’ freedom to contract. Therefore, Texas allows spouses who enter into a premarital agreement to exercise the broadest possible freedom to arrange their marital property rights as they desire, so long as it does not violate public policy. So does Harry and Sally’s premarital agreement violate public policy? Parties may generally contract with respect to, “any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.” The provisions in their premarital agreement, while arguably not in the best interests of a successful marriage as some of us may know it, are probably not against public policy. It is therefore unlikely that a Texas court will find that Sally and Harry’s premarital agreement is illegal or inconsistent with or contrary to the public’s best interest. If it is not against public policy, it is enforceable.

Editorial Comment: Fortuitously, last week Scott Burns of the Dallas Morning News wrote an article “Prenuptial Contract Doesn’t  Bode Well,” who said, in part “… You may think I am a hopeless romantic, but if you are truly concerned about protecting [a prenuptial agreement], you may not be ready for the promises you make on the day you marry. It is not hopelessly romantic to believe, as I do, that a good marriage can only be achieved when you embrace those promises without reservation.”