Prenuptial Agreements in Hawaii

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.

What Is a Prenuptial Agreement?

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.

Who Needs a Prenuptial Agreement?

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.

What Issues Can a Prenuptial Agreement Cover?

Prenuptial agreements can cover a number of issues, including any or all of the following:

• the rights and obligations of each spouse regarding property owned by either or both of them
• the rights of each spouse to buy, sell, use, transfer, or otherwise manage property that either spouse owns
• how property will be divided between the spouses upon separation, divorce, or death of either spouse
• whether either spouse will pay alimony to the other
• whether the spouses will write wills to carry out the terms of the agreement, and
• who will receive death benefits from either spouse's life insurance policy.

After marriage, spouses can amend or revoke their prenuptial agreement by signing a separate written agreement stating the change or revoking the original agreement.

Can a Prenuptial Agreement Determine Child Custody and Child Support in Hawaii?

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.

Will a Hawaii Court Enforce My Prenuptial Agreement?

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:

• one spouse did not sign the agreement voluntarily
• the agreement was "unconscionable" (severely unfair) when it was signed, and before signing:
  • a spouse was not truthful about assets or debts
  • the defrauded spouse did not waive the right for disclosure of the other spouse's assets or debts, and
  • the defrauded spouse could not have otherwise known about the other spouse's assets or debts.

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.