Prenuptial agreements are showing up more and more across the country, both in marriages and in courts during divorce proceedings. Traditionally, these contracts were used by wealthy people looking to protect their assets or the inheritance rights of their children from a prior relationship. Today, many couples are using them to shape their economic future by deciding prior to marriage how their assets will be divided if they divorce.
If you are considering a prenuptial agreement, you should know how they work in your state. This article describes what a Kansas prenuptial agreement can cover, and how courts decide whether or not to enforce a prenuptial agreement upon divorce.
A prenuptial agreement, also called a premarital agreement, is a contract that allows potential spouses to determine their rights to each other's property and to their joint property, before getting married. Using a prenuptial agreement, the couple can decide for themselves how they will divide their assets and debts, along with other financial issues, if their marriage ends. A couple that doesn't create a prenuptial agreement will still have to divide their property on divorce, but state law -- rather than the couple themselves -- will decide who gets what.
A prenuptial agreement must be entered into before marriage, but it goes into effect only when the couple marries.
Premarital agreements are no longer just for the wealthy; many types of couples see advantages in signing a prenuptial agreement. Contrary to popular belief, signing a prenuptial agreement does not increase the chance of divorce, and may in fact promote marital happiness by giving both spouses more certainty about their financial future if the relationship does not succeed.
Those who bring significant assets to the marriage, such as a successful business, retirement accounts, or other property, may want a prenuptial agreement to help protect these assets. Other couples that plan to have one spouse work while the other spouse raises children may want to decide how the non-working spouse will be financially supported in the event of a divorce. Other couples may simply want to avoid future litigation by deciding how any assets they accumulate during the marriage will be divided if they separate or divorce.
Kansas prenuptial agreements can cover a variety of issues, including:
Kansas prenuptial agreements can never determine child custody or child support.
The court or the spouses may determine child support at the time the parents separate. The amount of child support must be determined based on what is in the child's best interests. Parents can't determine what a child's reasonable needs are ahead of time, and certainly not before the child is born.
Similarly, Kansas courts have the power to approve any child custody agreement between parents, and judges must base their approval on the child's best interests. A court may end up agreeing with parents' decisions for custody, but it will not simply enforce a child custody arrangement written before the parents separate or the child is born.
Kansas has adopted a variation of the Uniform Premarital Agreement Act (UPAA), a set of requirements for prenuptial agreements used by many states across the country. The agreement must be in writing, and it must be signed by both prospective spouses.
Like any other contract, both spouses must be competent to enter into an agreement, meaning that both parties are of legal age and have the mental capacity to understand and create a contract. If one spouse suffers from mental illness or a mental deficiency that prevents him or her from understanding the agreement, the agreement may be invalid. Also, neither spouse should be under the influence of alcohol or drugs when signing the agreement.
While each prospective spouse does not have to hire an attorney, it is a good idea for each spouse to review the agreement with his or her own attorney. Each spouse must at least be given the opportunity to consult with an attorney before signing the agreement; a court may invalidate the contract if one spouse gives the other the agreement right before the wedding, leaving no time to meet with an attorney.
The prenuptial agreement should also list each spouse's assets and debts. Again, while Kansas law does not technically require the agreement to disclose each spouse's assets, a failure to truthfully disclose all financial information is a possible reason for a judge to invalidate the agreement.
Courts will generally enforce prenuptial agreements that are in writing and signed by both spouses. If there are ambiguities, courts will try to determine what the spouses intended when they signed the agreement. A prenuptial agreement will not automatically be invalidated (thrown out) because it leaves the spouses in very different financial positions after the marriage.
When deciding whether the agreement is enforceable, however, the court will consider how disproportionate it is. For example, a Kansas court threw out a prenuptial agreement that gave the wife $2,000 when the husband was worth more than $160,000.
The court may also refuse to enforce agreements that encourage divorce or agreements that give one spouse a windfall or profit for divorcing the other. Prenuptial agreements also cannot waive homestead rights or ERISA rights.
The court will refuse to enforce a prenuptial agreement if the agreement was not signed voluntarily. The judge will deem the agreement involuntary whenever there is fraud or duress. Fraud typically occurs when one spouse lies about his or her assets or debts, or makes some other false statement to trick the other into signing the agreement. Duress occurs when one spouse coerces the other into getting married. The court will consider several factors, but duress can include anything from physical threats, to threatening to cancel a wedding happening in a few hours if the other spouse doesn't sign the agreement. If you believe your prenuptial agreement was not signed voluntarily, you should contact a Kansas family law attorney for advice.