HAWAII PRENUPTIAL AGREEMENTS AND MARITAL AGREEMENTS
Prenuptial/premarital and marital/postmarital agreements are excellent ways for couples to plan for their lives if their marriage fails or does not work out. Doi/Luke, Islandlawyers is located in Honolulu, Hawaii, and we have handled many shapes and sizes of marital agreements over the last 20 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. Marital 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, or sometime more simply as marital 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 enter into marriage. If the parties end up not marrying, the prenup does not take effect.
Postmarital (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.”
WHY HAVE A MARITAL AGREEMENT?
Premarital agreements are sought for a number of reasons, depending on the desires of the marrying parties. Some examples are:
- ensuring that parties’ premarital property remains their own sole property in case of a divorce;
- protecting a family property that one party wants to keep in his/her family;
- allowing them to continue to acquire/earn separate property, even after marriage; and
- limiting or eliminating alimony to the other party in a divorce.
Contrary to what many think, premarital agreements are not just contracts to “shut out” a fiancee/fiance, but can also be tools so that a marrying couple can determine how they want their finances to be handled in the event of a divorce. This can allow couples to enter into marriage without worrying about worst-case divorce scenarios.
If you would like to discuss what can and cannot be placed in a premarital agreement, please give us a call. Before meeting with one of 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, an attorney 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, than an unhappy party cannot attempt to throw out the agreement by claiming that they did not understand.
Like premarital agreements, postmarital (sometimes referred to as “postnuptial agreements” or simply “marital agreements”) agreements can be tailored according to what each couple seeks. Sometimes these are used as “pre-divorce” agreements or separation agreements, setting forth what the terms of the divorce will be, when and if the parties later divorce. As noted above, you will often see these agreements 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/Postnuptial Agreement Questionnaire is linked below:
GETTING A MARITAL AGREEMENT 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 – this makes marital agreements something in which it is worthwhile to invest monies to get it done right. At Doi/Luke, we have substantial experience drafting solid, cost-effective premarital and marital agreements.
If you have a question about premarital or postmarital agreements, or would like to set up a consult, e-mail us or call us at 593-2199. We’ll be happy to hear from you.