Alimony Ordered Despite Breach of Prenuptial Agreement

Is this a case of eating your cake and having it, too? In Dockery v. Dockery, a wife breached a prenuptial agreement by challenging it but received $25,000 in contractual alimony anyway.

Prior to marriage, the parties signed a prenuptial agreement. The prenuptial agreement stated that the parties' respective earnings during marriage would be their respective separate property and that no community property would be created.

The prenuptial agreement "also stated that if the couple remained married for five years, but later divorced, the husband would pay the wife $25,000 in contractual alimony." The agreement additionally stated that if either party challenged the enforceability of the agreement, that action would constitute a breach of the agreement.

After twelve years of marriage, the wife sued the husband for divorce. In the divorce, the wife took the position that community property existed. That action breached the prenuptial agreement. However, the husband testified that he wanted the trial court to enforce the prenuptial agreement. The trial court enforced the agreement by ruling that no community property existed and that the prenuptial agreement required the husband to pay the wife $25,000 in contractual alimony.

The Tyler Court of Appeals affirmed the trial court's decision. With citations to cases removed, the Court explained the applicable law:

Generally, in Texas, courts interpret premarital agreements like other written contracts. "Breach of agreement," or contract, means the failure, without legal excuse, to perform any promise that forms the whole or part of an agreement. It is a fundamental principle of contract law that when one party to a contract commits a material breach, the other party's performance is excused. 

However, if the nonbreaching party treats the contract as continuing after the breach, he is deprived of any excuse for terminating his own performance. Thus, when one party materially breaches a contract, the nondefaulting party is forced to elect between two courses of action, i.e., continuing performance or ceasing performance.Treating the contract as continuing after a breach deprives the nondefaulting party of any excuse for terminating its own performance.

Because the husband requested the trial court to enforce the prenuptial agreement, the husband elected to continue performance and therefore waived the breach.

The question remains, what provisions can a family law attorney include in a prenuptial agreement to discourage the opposing party from breaching it? 

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