Can a Prenup Be Thrown Out in Hawaiʻi?

Hawaiʻi Law Treats Prenuptial Agreements as Enforceable as a Starting Point

Hawaiʻi has adopted the Uniform Premarital Agreement Act, which is found in Chapter 572D of the Hawaiʻi Revised Statutes.

Under HRS § 572D-6, a premarital agreement is enforceable and binding unless the party opposing enforcement proves one of the statutory grounds for avoiding the agreement.

That starting point is important.

A person challenging a prenup generally does not get to simply ask the Family Court to divide the parties’ property according to ordinary divorce law because the result would be more favorable. The court first has to determine whether the parties entered into an enforceable agreement governing those issues.

The Hawaiʻi Supreme Court has recognized that a premarital agreement does not become unenforceable simply because its terms may appear unequal or because one spouse ultimately receives a better bargain.

That distinction frequently becomes important when a prenup is challenged many years after it was signed.

What Are the Main Grounds for Challenging a Prenup in Hawaiʻi?

Under Hawaiʻi law, the two primary statutory grounds involve:

1. Whether the agreement was entered into voluntarily; and
2. Whether the agreement was unconscionable when it was executed, together with deficiencies in financial disclosure or knowledge.

Although these concepts sound straightforward, the facts surrounding the preparation and signing of an agreement can become highly contested during a divorce.

Was the Prenup Signed Voluntarily?

One common challenge is that a spouse claims that he or she did not voluntarily sign the agreement.

In determining voluntariness, Hawaiʻi courts may look at issues involving duress, coercion, undue influence, or other circumstances suggesting that a person did not exercise free will in signing the agreement.

The Hawaiʻi Supreme Court addressed this issue in L.R.O. v. N.D.O., a 2020 decision involving a challenge to a premarital agreement.

The Court identified a number of circumstances that can be relevant when deciding whether an agreement was voluntary, including:

• how close to the wedding the agreement was signed;
• whether the agreement was presented as a surprise;
• whether each party had an opportunity to consult with independent legal counsel;
• whether there were differences in the parties’ bargaining power, age, or sophistication;
• whether there was adequate disclosure of assets; and
• whether the parties understood the rights affected by the agreement.

No single factor necessarily determines the outcome.

For example, signing an agreement relatively close to a wedding does not automatically make the agreement invalid. Likewise, the fact that one party did not have a separate attorney does not necessarily mean that the agreement is unenforceable.

Instead, the Family Court may examine the circumstances as a whole.

Does Signing a Prenup Shortly Before the Wedding Make It Invalid?

This is one of the most common misconceptions about prenuptial agreements.

There is no simple Hawaiʻi rule providing that a prenup becomes invalid because it was signed within a particular number of days before the wedding.

Timing can certainly matter. A last-minute presentation of a complicated agreement shortly before a large wedding may become evidence in a later claim of coercion or lack of voluntariness.

But timing is only part of the analysis.

In L.R.O. v. N.D.O., the Hawaiʻi Supreme Court upheld a premarital agreement even though it was executed on the same day the parties married. Among the circumstances considered by the court were that the wife had previously received the agreement, understood its purpose, had the opportunity to obtain an attorney, and had participated in changes to its terms.

As a practical matter, however, couples should avoid creating this issue whenever possible. Starting the prenup process well before the wedding allows both parties time to review financial information, obtain legal advice, negotiate proposed terms, and consider the agreement without unnecessary time pressure.

What About Financial Disclosure?

Financial disclosure can be particularly important in both preparing and later defending a prenuptial agreement.

HRS § 572D-6 addresses situations in which an agreement was allegedly unconscionable and the spouse challenging it claims that, before signing:

• the spouse did not receive fair and reasonable disclosure of the other party’s property or financial obligations;
• the spouse did not waive additional disclosure in writing; and
• the spouse did not otherwise have, or reasonably could not have had, adequate knowledge of the other party’s property or financial obligations.

For this reason, well-prepared prenuptial agreements commonly include schedules identifying significant assets and debts.

Depending upon the circumstances, financial documentation may include real estate, investment and retirement accounts, business interests, bank accounts, significant personal property, income information, and outstanding liabilities.

Good disclosure serves two purposes.

First, it allows the parties to make an informed decision before signing the agreement.

Second, if the agreement is challenged years later, the disclosure can serve as key evidence demonstrating what the parties knew when they entered into the agreement.

What Does “Unconscionable” Mean?

A spouse sometimes argues that a prenup should be invalid simply because its financial consequences are harsh.

That is not necessarily sufficient.

Hawaiʻi cases distinguish between an agreement that is merely unequal and one that reaches the level of unconscionability.

The Hawaiʻi Supreme Court has described unconscionability in terms of two concepts: one-sidedness and unfair surprise.

One-sidedness concerns whether the agreement creates an unjustly disproportionate economic result. Unfair surprise concerns matters such as whether a party lacked adequate knowledge of the other party’s financial circumstances when the agreement was signed.

Importantly, Hawaiʻi law does not give courts unrestricted authority to rewrite a prenuptial agreement simply because, in hindsight, one spouse would have received more property without it.

That would defeat much of the purpose of entering into a prenup in the first place.

A Bad Bargain Is Not Necessarily an Invalid Agreement

This point is especially important in contested divorces.

Suppose a couple signs a prenup before marriage providing that each spouse will retain separate property brought into the marriage, including any appreciation in that property.

Twenty years later, one spouse’s separately owned business or real estate may have increased enormously in value.

Without the prenup, the other spouse may argue for a substantial interest in some or all of that appreciation.

With the prenup, the result may be very different.

The fact that the financial consequences have become significant does not, standing alone, establish that the agreement was invalid when it was made.

Hawaiʻi courts have repeatedly recognized the importance of enforcing valid agreements even when one party ultimately receives a substantially better financial result than the other.

Having Separate Attorneys Can Make a Prenup More Defensible

Hawaiʻi law does not establish a universal rule that both parties must have separate attorneys before a premarital agreement can be enforced.

Nevertheless, independent legal representation is one of the circumstances a court may consider when voluntariness is later disputed.

There is also an important practical difference between signing an agreement and signing an agreement after receiving independent advice concerning its consequences.

• what rights would normally exist without the agreement;
• what rights are being preserved;
• what rights are being waived;
• how property will be characterized;
• how appreciation or income will be treated;
• how debts will be handled; and
• what may happen if the marriage ends in divorce.

That record can carry significant weight many years later if one spouse seeks to avoid the agreement.

Can a Prenup Control Child Custody or Child Support?

There are limits to what prospective spouses can determine through a prenuptial agreement.

Parents cannot conclusively decide future child custody simply by putting their preferred arrangement into a prenup. Custody decisions ultimately must be based upon the child’s best interests at the time the issue is before the Family Court.

Likewise, parents cannot use a prenuptial agreement to eliminate a child’s right to appropriate financial support.

A prenup is primarily a tool for addressing financial rights and obligations between the prospective spouses.

What About Alimony?

Hawaiʻi law expressly allows a premarital agreement to address the modification or elimination of spousal support.

There are, however, statutory limitations. For example, HRS § 572D-6 permits a court in certain circumstances to order support notwithstanding a waiver if enforcement would cause a spouse to become eligible for public assistance.

Challenges involving alimony provisions can also present issues different from disputes over property provisions. Because of that, the language used in the agreement and the particular circumstances of the parties can matter a great deal.

Can a Prenup Include Penalties for Cheating?

This is another area where Hawaiʻi law deserves particular attention.

In Crofford v. Adachi, the Hawaiʻi Supreme Court considered a postmarital agreement—not a premarital agreement—that changed how marital property would be divided depending upon misconduct such as infidelity or physical abuse.

The Court held that provisions making the distribution of marital property dependent upon marital fault conflicted with Hawaiʻi’s strong policy favoring no-fault divorce.

Although Crofford involved a postnuptial rather than a prenuptial agreement, it illustrates a larger point: even when the parties voluntarily agree to a provision, a court may still consider whether that particular provision is consistent with Hawaiʻi law and public policy.

For this reason, a well-drafted agreement should focus principally on legitimate financial planning rather than attempting to impose punishment for marital misconduct.

What Happens When One Spouse Challenges the Prenup During Divorce?

A contested prenup can effectively create a significant case within the larger divorce proceeding.

The parties may disagree over what happened years—or sometimes decades—earlier.

Questions may include:

• Who first proposed the agreement?
• When was the first draft provided?
• How many drafts were exchanged?
• Did both parties participate in negotiations?
• Did each person have an attorney?
• Was independent counsel offered?
• What financial information was exchanged?
• Were asset schedules attached?
• Was anything omitted?
• Did the parties understand the agreement?
• Were changes made at either party’s request?
• How much time passed between the agreement and the wedding?
• Were there threats or pressure to sign?
• What did the parties do after the marriage that may reflect their understanding of the agreement?

Evidence may include the agreement itself, financial disclosure schedules, correspondence between the parties, communications between counsel, prior drafts, financial statements, and testimony concerning the circumstances surrounding execution.

The validity of the prenup may need to be resolved before the court can determine how the parties’ property should ultimately be divided.

Defending the Validity of a Prenuptial Agreement

At Doi/Luke, we not only prepare prenuptial agreements—we also represent clients in Hawaiʻi divorce cases in which an existing prenuptial agreement is challenged.

That litigation experience is important when drafting agreements.

A prenup should not merely look complete on the day it is signed. Ideally, the agreement and the process surrounding it should create a clear record that may still make sense to a Family Court judge many years later.

That means paying attention not only to the language of the agreement, but also to matters such as disclosure, timing, independent counsel, negotiations, documentation, and the circumstances surrounding execution.

Conversely, when an existing agreement is challenged in a divorce, careful examination of that history may be critical to defending its enforceability.

The Bottom Line

Yes, a prenuptial agreement can be challenged in Hawaiʻi.  But a properly drafted, properly presented, and properly executed, prenuptial agreement WILL withstand these challenges.  

Hawaiʻi law provides for enforcement of premarital agreements unless the party challenging the agreement proves a recognized legal basis for avoiding it.

The strongest agreements are therefore not simply documents signed before a wedding. They are agreements entered into through a careful process—one that demonstrates informed decision-making, appropriate financial disclosure, sufficient opportunity for review, and voluntary consent.

And if a prenuptial agreement is later challenged during a divorce, the issue may require both a careful understanding of Hawaiʻi’s premarital-agreement law and the ability to present the history and circumstances surrounding the agreement to the Family Court.

If you have questions about prenuptial agreements, contact Doi/Luke, Attorneys at Law. We’ll help you figure out what’s the best course for you and your future.

Frequently Asked Questions

Can a prenuptial agreement be thrown out in Hawaiʻi?

Not automatically. A Hawaiʻi court can set aside a premarital agreement, but only if the spouse challenging it proves a recognized statutory ground under HRS § 572D-6—such as an involuntary signing or unconscionability. Simply disliking the outcome years later is not, by itself, enough.

Does signing a prenup shortly before the wedding make it invalid?

No. Hawaiʻi has no fixed cutoff measured in days. Timing can be one factor a court weighs when deciding whether an agreement was signed voluntarily, but the Hawaiʻi Supreme Court has upheld agreements signed the same day as the wedding when the circumstances as a whole showed the agreement was understood and voluntary.

Do both spouses need their own attorney for a Hawaiʻi prenup to be enforceable?

Not as a strict requirement. Hawaiʻi law does not mandate separate counsel for both parties. Independent legal representation is, however, one of the circumstances a court may consider when voluntariness is disputed, so it can make an agreement more defensible later.

Can a Hawaiʻi prenup waive alimony entirely?

Generally, yes—Hawaiʻi law allows a premarital agreement to modify or eliminate spousal support. HRS § 572D-6 does, however, permit a court to order support notwithstanding a waiver if enforcing it would leave a spouse eligible for public assistance.

Can a prenup decide child custody or child support in advance?

No. Custody must be decided based on the child’s best interests at the time the issue is before the Family Court, and parents cannot use a prenuptial agreement to eliminate a child’s right to appropriate financial support.

What is the difference between an unequal prenup and an unconscionable one?

An agreement is not invalid merely because it produces an unequal result. Hawaiʻi courts instead look for unconscionability, which involves either one-sidedness (an unjustly disproportionate economic result) or unfair surprise (inadequate knowledge of the other party’s finances when the agreement was signed).