Prenuptial agreements (also called premarital agreements) are excellent tools for couples to plan for their lives if their marriage does not work out. The lawyers at Doi/Luke are located in Honolulu, Hawaii, and have handled numerous shapes and sizes of marital agreements over 25+ years.
WHAT IS A MARITAL AGREEMENT?
Marital agreements are agreements made between two people, either planning to get married or already married, which fix terms/issues in advance, should the parties later get divorced. Agreements made prior to getting married are typically referred to as premarital agreements (also called prenuptial agreements). Marital agreements made after the parties are already married are referred to as postmarital or postnuptial agreements.
Prenuptial agreements in Hawaii, also known as “prenups” or premarital agreements are authorized under the Hawaii Uniform Premarital Agreement Act (“HUPAA” – Hawaii Revised Statutes section 572D). These are essentially contracts between two individuals who are planning to be married. Although prenups are contracts, they do not become effective immediately upon signatures of the parties. Rather, the prenups become effective when the parties actually marry. Therefore, if the parties end up not marrying, the prenup does not take effect.
Postmarital agreements (sometimes referred to as “postnuptial agreements” or simply “marital agreements”) are agreements made between parties who are already married. Because the parties are already married, they take effect immediately upon both parties signing. Often times, you will see these agreements titled “Agreement Incident to Divorce,” or “Agreement In Contemplation of Divorce.” See our separate discussion of postmarital and marital agreements.
WHY HAVE A PRENUPTIAL AGREEMENT?
What You Can Have in a Hawaii Prenuptial Agreement
Premarital agreements are sought for a number of reasons, depending on the desires of the marrying parties. Some examples are:
Protecting premarital property – ensuring that parties’ premarital property remains their own sole property in case of a divorce;
Protecting gift/inheritance property – protecting a family property that one party wants to keep in his/her family;
Specifying rights about property acquired in the future – allowing them to continue to acquire/earn separate property, even after marriage;
Alimony – specifying, limiting, or eliminating alimony to the other party in a divorce; and
Businesses – providing guidelines as to what happens to a business owned by either or both of the parties.
Contrary to what many think, premarital agreements are not just contracts to “shut out” a fiancee/fiance. Rather, they are tools that a couple can use to determine what happens in the event of a divorce. This can allow couples to enter into marriage without worrying about worst-case divorce scenarios.
What You Cannot Have in a Prenuptial Agreement
Child custody and visitation provisions – although you can have agreements regarding custody/visitation, they are generally not enforceable in Family Court. As a primary factor, child custody is considered a matter of state interest, so orders regarding custody must be approved by a judge. In certain cases, custody agreements might be considered by a court as proof of the parties’ intent, but again, the agreement is not binding.
Child support – the ordering of child support, including its calculation is in the authority of the courts. Just as with custody/visitation, divorce courts generally will not enforce a prenuptial child support provision.
Encouraging divorce – as a matter of public policy, courts do not wish to encourage divorce. As part of that, courts look down on parties having financial incentive to divorce.
Personal/non-financial provisions – courts generally will not uphold provisions about chores, maintaining physical appearance, getting along with in-laws, and other requirements of a personal nature.
Alimony (sometimes) – some states do not allow for the waiver of alimony, while some other put limits on the ability to waive it. Many states however, including Hawaii do allow parties to eliminate or minimize alimony. In Hawaii, it should be noted that a court can strike an alimony waiver if it believes that it will cause the poorer spouse to go on state assistance.
If you would like to discuss more about what can and cannot be placed in a premarital agreement, please give us a call. Before meeting with us, it is often helpful to fill out our Premarital Agreement Questionnaire, in Adobe Acrobat (R) format, which you can download below:
In most cases, a lawyer drafting a premarital agreement represents only one of the couple, and will recommend that the other party retain their own attorney to represent them in reviewing the agreement. This is an important component of the premarital agreement process. If both sides have an attorney and the parties are divorcing later, then an unhappy party will have a difficult time attempting to throw out the agreement by claiming that they did not understand.
GETTING HAWAII PRENUPTIAL AGREEMENTS DRAFTED
Many people are tempted to draft these types of agreements on their own, to save money. But drafting an agreement of this importance usually calls for the services of an experienced family law attorney. Typically, people are having these agreements prepared in order to save many, many thousands of dollars. Therefore, this makes prenuptial agreements something worth an investment to get it done right.
We have substantial experience drafting solid, cost-effective premarital agreements. If you have a question about Hawaii prenuptial agreements, or would like to set up a consult, e-mail us or call us at (808) 593-2199. We’ll be happy to hear from you.