Most people are familiar with prenuptial agreements, which couples sign before they marry. But married couples can also make binding agreements with each other after the wedding.
These are commonly called postnuptial agreements, postmarital agreements, or simply marital agreements. They can be used to clarify property rights, set financial arrangements during the marriage, or establish what will happen to property and other financial issues if the couple later separates or divorces.
Hawaiʻi law permits spouses to contract with each other. Under HRS §572-22, contracts between spouses, “whenever made,” are valid unless they are invalid under some other law. A well-prepared marital agreement can give a couple real financial certainty, but only if it is drafted carefully.
A postnuptial agreement is an agreement made after the parties are already married. A prenuptial agreement, by contrast, is signed before the wedding and takes effect when the couple marries.
Spouses may decide to sign a postnuptial agreement to:
clarify which property will remain separate;
decide how particular assets or debts will be treated;
protect a business or professional practice;
address an inheritance or family property;
set rights in real estate;
update their financial arrangements after circumstances change; or
set the financial terms that will apply if they later separate or divorce.
Some couples meant to sign a prenup but ran out of time before the wedding, and decide to address the same issues afterward. A postnuptial agreement, however, is not simply a prenup signed late. Because the parties are already married, different statutes and legal considerations apply.
Generally, yes. HRS §572-22 expressly allows spouses to contract with each other, and Hawaiʻi’s appellate courts have enforced marital agreements.
In Balogh v. Balogh, 134 Hawaiʻi 29, 332 P.3d 631 (2014), separated spouses signed a memorandum of understanding dividing their property. The Hawaiʻi Supreme Court held that the agreement was enforceable because it was not unconscionable and was entered into voluntarily.
But calling a document a “postnuptial agreement” does not make every provision enforceable. The circumstances under which it was signed, and the substance of its terms, still matter.
A carefully drafted marital agreement can address most of the same financial subjects as a prenup.
The agreement can address residences, rental properties, vacant land, family property, and other real estate. For example, the spouses might agree:
that property owned before the marriage will remain separate;
how mortgage payments made during the marriage will be treated;
whether appreciation in value will be shared;
what happens if separate property is refinanced; and
how jointly owned property will be divided if the marriage ends.
These details matter most when one spouse brought substantial real estate into the marriage.
A marital agreement can address how ownership, appreciation, business income, distributions, and business debt will be treated if the spouses later divorce. The more complex the business, the more important it is to define exactly what the agreement is meant to protect.
A postnuptial agreement may address:
savings and investment accounts;
retirement benefits;
stock and brokerage accounts;
interests in partnerships or LLCs; and
other financial assets.
It can also specify whether future earnings and future acquisitions will be separate or shared.
A marital agreement can clarify what happens to property received by inheritance or gift. This is especially useful when inherited assets have been mixed with marital funds, or when the spouses use inherited property together during the marriage.
A marital agreement can assign responsibility for existing and future debts, including:
mortgages;
business obligations;
credit cards;
student loans;
tax liabilities; and
personal loans.
Clear provisions reduce later disputes over who is responsible for what.
Yes, if it is valid. Hawaiʻi courts have enforced agreements that set how property will be divided on divorce.
In Balogh, the agreement gave one spouse 75% of the proceeds from the sale of the home, plus $100,000 “in lieu of Alimony and court proceedings.” The Supreme Court held those terms enforceable, reasoning that an uneven split was the very purpose of the agreement and that the other spouse still received an equitable share of the remaining marital assets.
Spouses may address alimony (spousal support) in a marital agreement, but support provisions call for extra care.
Under HRS §572-22(b), an agreement for periodic support payments made in contemplation of divorce or judicial separation is subject to court approval in the divorce. Even after approval, future payments remain subject to increase, decrease, or termination if circumstances change.
A lump-sum payment in place of alimony, like the $100,000 payment in Balogh, may be treated differently from an agreement for ongoing monthly support. Spouses should not assume that every support provision will operate the same way as a property-division provision.
Parents can discuss and agree on how they would like to handle custody and parenting time, and courts may consider those agreements, but a marital agreement cannot bind the Family Court on custody.
Custody and visitation decisions must be based on the best interests of the child, and the Family Court keeps the authority to decide whether a proposed arrangement is appropriate. Parents cannot use a private contract to take away the court’s responsibility to protect the child.
Parents can propose child support terms, but they cannot contract away a child’s right to adequate support. Agreements for the support of children made in contemplation of divorce are subject to court approval under HRS §572-22(b), and child support is generally set under the Hawaiʻi Child Support Guidelines.
An agreement that one parent will never pay child support, or that fixes an amount inconsistent with the guidelines, may not control what the court orders.
Yes. Spouses’ freedom to contract with each other has limits.
The Hawaiʻi Supreme Court made this clear in Crofford v. Adachi, 150 Haw. 518, 506 P.3d 182 (Haw. 2022).
The spouses had signed a marital agreement and addendum that tied the division of property to marital misconduct. The Court held that “marital agreements that consider fault or misconduct when dividing the marital property are not enforceable” because they conflict with Hawaiʻi’s no-fault divorce policy. It declared the agreements void and unenforceable.
Crofford illustrates the limit built into HRS §572-22 itself: contracts between spouses are valid only if they are not otherwise invalid under the law. A postnuptial agreement cannot be used to penalize adultery, punish a spouse for marital misconduct, or otherwise get around Hawaiʻi public policy.
No checklist guarantees enforcement, but several factors matter.
Neither spouse should be forced, threatened, or improperly pressured into signing. The parties’ signing should be free of “duress, coercion, undue influence, or any other circumstance indicating lack of free will or voluntariness.” Prell v. Silverstein, 114 Haw. 286, 162 P.3d 2 (Haw. App. 2007).
An agreement is not unenforceable merely because one spouse later decides it was a bad bargain. As the Hawaiʻi Supreme Court has explained, a merely unequal or “inequitable” contract is still enforceable. Only an agreement that is unconscionable, through one-sided terms, unfair surprise, or both, can be set aside on that basis. Lewis v. Lewis, 69 Haw. 497, 748 P.2d 1362 (1988).
Each spouse should understand the other’s finances before giving up significant property rights. Depending on the case, that may include disclosure of:
real property;
retirement accounts;
investments;
business interests;
income;
debts; and
other significant financial interests.
Written disclosure, attached to or referenced in the agreement, creates a record if the agreement is challenged years later.
One attorney should not advise both spouses on whether the same agreement protects each of their interests. Separate attorneys are not just about negotiating against each other. Independent advice ensures that each spouse understands the legal effect of the agreement and the rights being changed or waived, and it makes a later claim of unfair surprise much harder to sustain.
The basic difference is timing.
Prenuptial Agreement | Postnuptial Agreement | |
|---|---|---|
When signed | Before marriage | During marriage |
Parties | Prospective spouses | Married spouses |
Takes effect | Upon marriage | When signed, or as the agreement specifies |
Common subjects | Property, businesses, inheritance, alimony, debts | Many of the same financial subjects |
Primary Hawaiʻi statute | HRS Chapter 572D (Uniform Premarital Agreement Act) | HRS §572-22 |
Couples who are not yet married should ordinarily use a prenuptial agreement. Once they have married, a postnuptial agreement is the appropriate tool.
Not necessarily. Many marital agreements are made by spouses who intend to stay married. A couple might want to clarify ownership of a family business or inherited property, for example, with no plans to separate.
Other agreements are made when spouses are already contemplating separation or divorce. These may be called:
separation agreements;
agreements in contemplation of divorce;
agreements incident to divorce; or
divorce settlement agreements.
The label matters less than the substance and the circumstances. If divorce is already being considered, the agreement should be drafted with that in mind, including the court-approval requirement for support provisions.
This happens often. A couple may start discussing a prenup and run out of time before the wedding, or realize only after marrying that they should have addressed certain financial issues.
Once the wedding has taken place, a couple cannot backdate a prenup or treat it as if it were signed beforehand. Instead, they should consider whether a postnuptial agreement can accomplish the same goals, drafted as a marital agreement from the outset.
Marital agreements can affect hundreds of thousands, sometimes millions, of dollars in real estate, businesses, retirement benefits, and other assets. A document governing those assets needs to do more than say “what’s mine stays mine.”
Questions frequently arise about:
appreciation in value;
income earned during the marriage;
mortgage payments;
jointly titled property;
refinancing;
business growth, distributions, and retained earnings;
retirement benefits;
estate rights;
debts; and
what happens when assets are sold or replaced.
Whether the agreement holds up may also depend on how it was negotiated and signed. For both reasons, this is an area where careful legal drafting is especially important.
Yes. Hawaiʻi law permits spouses to contract with each other at any point during the marriage. Having been married for many years does not by itself prevent a couple from making a marital agreement.
Yes. A marital agreement can address ownership of a business, its value and appreciation, business income, and what happens to the business in a divorce.
Yes. Spouses can agree how inherited or gifted property will be treated, including if it is later sold, reinvested, or used during the marriage.
Not conclusively. The Family Court keeps authority over custody, based on the child’s best interests, and over child support under Hawaiʻi law.
No. Under Crofford v. Adachi, marital agreements that make property division depend on fault or misconduct are unenforceable in Hawaiʻi.
Yes. Common challenges include whether the agreement was signed voluntarily, whether it is unconscionable, whether the parties intended it to govern the divorce, whether it was later abandoned or modified, and whether any provision violates Hawaiʻi law or public policy.
Hawaiʻi law does not require separate attorneys for every marital agreement, but independent legal advice is a prudent safeguard whenever spouses are changing substantial marital rights.
A postnuptial agreement can bring clarity to property and financial rights, both during the marriage and in the event of a divorce. But because these agreements can substantially change rights spouses would otherwise have under Hawaiʻi law, careful drafting and informed decisions are essential.
Doi/Luke, Attorneys at Law has represented Hawaiʻi families since 1995 in divorce, property division, prenuptial agreements, and marital agreements. We can help you decide whether a postnuptial agreement is right for your situation, prepare an agreement that meets your goals, or review an agreement your spouse has proposed.
Call (808) 593-2199 or contact us through our website to schedule a consultation.
This page provides general information only and is not legal advice. Reading it does not create an attorney-client relationship. Every case depends on its own facts.
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