If you are about to get married, you may wonder whether you need a prenuptial agreement to protect your assets. Today, many couples enter into prenuptial agreements to remove uncertainty about how their property and financial obligations will be resolved in the event of a divorce.
Different states have different rules about prenuptial agreements. This article explains how Hawaii’s defines a prenuptial agreement, what it may include, and what makes the agreement enforceable.
A prenuptial agreement, often called a “premarital agreement” in Hawaii, is an agreement between potential spouses, made before they get married. The agreement doesn’t go into effect when it’s signed, but rather upon marriage. The agreement is a contract in which the couple spells out how they want their assets, debts, property, and finances divided if they divorce.
Many people believe that prenuptial agreements are only for the very wealthy, but anyone with assets, children from a prior relationship, or a partner with debts may want to consider signing a prenuptial agreement before getting married.
Some couples enter into prenuptial agreements to protect significant assets that one or both of them already own prior to the marriage. Other couples may expect to receive an inheritance from a relative, and do not want it to get mixed in with the couple’s marital property in case they divorce. Individuals getting married also use prenuptial agreements to protect the inheritance of children from prior marriages, business interests owned by either spouse, retirement accounts, or other property.
Of course, a couple's property and debts will be divided upon divorce, whether or not they decide to create a prenuptial agreement. But if the couple hasn't made an agreement themselves, state law will determine who gets what. By making a prenuptial agreement, the couple can come up with a financial arrangement that meets their own unique needs.
Prenuptial agreements can cover a number of issues, including any or all of the following:
After marriage, spouses can amend or revoke their prenuptial agreement by signing a separate written agreement stating the change or revoking the original agreement.
A prenuptial agreement cannot dictate future child support obligations. The right to child support belongs to the child, not the parents, and a child’s parents can’t contract or bargain that right away.
Likewise, either the court or the parents will decide child custody and visitation at the time parents separate or divorce. If parents write provisions regarding custody or visitation of future children into their prenuptial agreement, a court will ignore those provisions when it decides who should get custody.
Hawaii is one of many states that have adopted the Uniform Prenuptial Agreement Act (UPAA), which provides certain guidelines for making your prenuptial agreement enforceable.
In Hawaii, prenuptial agreements must be in writing. Both spouses must sign the prenuptial agreement. And, the agreement is enforceable only after the couple marries; if they never marry, the agreement never goes into effect.
The court will enforce a signed prenuptial agreement unless one of the following factors is present:
If a spouse would have to receive public assistance because an agreement doesn't allow for alimony, a court can override the agreement and force the other spouse to pay alimony.
The court will decide whether an agreement is unconscionable by looking at whether the agreement is extremely one-sided, and whether there is unfair surprise. Hawaii defines “unfair surprise” as one spouse not having full knowledge of the other’s financial situation when they signed the agreement.
The court will decide whether property division terms in a prenuptial agreement are unconscionable by looking to see whether it was unfair at the time the spouses signed the agreement. The court will decide whether alimony provisions are unconscionable, however, by deciding whether they are unfair at the time of divorce.
If a marriage is voided (because, for example, the spouses are related to each other, or one spouse is underage or already married), the court will usually not enforce the prenuptial agreement, unless it would yield an unfair result.