Hawaii law allows for the creation of marital agreements, which are also referred to as “postmarital agreements” or “postnuptial agreements” (they’re all the same). These agreements are permissible under Hawaii Revised Statutes §572-22, which allows married persons to make contracts with their spouse. A marital agreement would control what happens between the parties in a future divorce.
Like premarital agreements, marital agreements can be tailored according to what each couple seeks. Sometimes these are used as “pre-divorce” or separation agreements, setting forth what happens when and if the parties later divorce. These agreements are often titled “Agreement Incident to Divorce,” or “Agreement In Contemplation of Divorce“. Alternatively, some people opt to use postmarital agreements in situations where they had intended to enter into a premarital agreement, but were not able to do so before the wedding.
If you are in either of these situations and would like to discuss options, our Postmarital Questionnaire is below:
WHAT CAN BE DONE UNDER A MARITAL AGREEMENT?
Just as with prenuptial agreements, there are limitations to what is enforceable under a marital agreement.
Child custody/visitation: orders about custody of children are not enforceable orders until they are approved by a Family Court Judge. This is because the State needs to determine that the proposed custody is in the best interests of the child, and the Judge is making that decision on behalf of the State. This is not to say that Family Court Judges regularly overrule custody agreements made between two parents, which is very rare.
Child support: as with custody, the State of Hawaii has an interest in ensuring that all children are financially supported. Thus, Hawaii created the Child Support Guidelines, which provides the basis for how child support is calculated. As such, even if a couple specifies a child support number they desire, the Court is not bound to follow it, particularly if it does not meet the Child Support Guidelines.
Alimony: parties can make agreements regarding alimony or spousal support. However, as in the case of prenuptial agreements, a Court can override the alimony agreement if it believes that it will cause the “poorer” spouse to go on public assistance.
It is best to speak with a legal professional to determine if what you seek can be done in a marital agreement.
GETTING MARITAL AGREEMENTS DRAFTED
Many people are tempted to draft these types of agreements on their own, to save money. But undertaking agreement of this importance and complexity usually calls for the services of a good family law attorney. Typically, people are having these agreements prepared in order to save many, many thousands of dollars. Therefore, this makes marital agreements something worth investing in to get it done right.
We have substantial experience drafting solid, cost-effective marital agreements. If you have like to set up a consult, e-mail us or call us at (808) 593-2199. We’ll be happy to hear from you.