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Prenuptial Agreements
Prenuptial and Antenuptial (Postnuptial) Agreements and Cohabitation Agreements
Prenups and postnuptial agreements are not just for the rich or business owners. They are also not just for people who think their marriage may not last. These agreements can accomplish many purposes. They can help soon-to-be married couples set out their blueprint for finances and can help already-married couples keep finances in their preferred risk-sharing (or risk-avoiding) scheme.
CCN.com article featuring married couples using postnuptial agreements to solve marital issues
, "Quit fighting -- get a postnuptial agreement."
Prenuptial
On July 1, 1987, the Hawai'i Uniform Premarital Agreement Act (HUPAA), HRS chapter 572D, took effect. All premarital agreements entered into after that are governed by this law.
Under the Uniform Premarital Agreement Act, "premarital agreement" means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage, and "property" means any interest in real or personal property, including income and earnings. The parties to a premarital agreement may contract with respect to
(2) the right to buy, sell, use, transfer, exchange, abandon, lease, consume, mortgage, dispose of, or otherwise manage and control property;
(3) the disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
(4) the modification or elimination of spousal support;
(5) the making of a will, trust, or other arrangement to carry out the provisions of the agreement;
(6) the ownership rights in and disposition of the death benefit from a life insurance policy;
(7) the choice of law governing the construction of the agreement; and
(8) any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty
Although premarital agreements may govern just about everything except custody, those agreements are not enforceable if the other party did not execute the agreement voluntarily or if the agreement was unconscionable (for instance, leaving one party in abject poverty).
The agreement may also be unenforceable if one party failed to disclose matters necessary for the other to make an informed decision.
Pursuant to Haw. Rev. Stat. § 572D-10, "[a]ll written agreements entered into prior to July 1, 1987, between prospective spouses for the purpose of affecting any of the provisions of this chapter shall be valid and enforceable if otherwise valid as contracts." HUPAA does not apply to these agreements. Instead, the law of contracts applies.
Postnuptial Agreements (Antenuptial Agreements)
The law used to be that married people could not enter into enforceable agreements with each other, as they were considered to be one person legally. Now, agreements in the marriage ("marital agreements") and agreements in contemplation of divorce ("divorce agreements") are possible. But over the course of a marriage, the categories of property may merge from separate to marital property, and what marital agreements actually cover may be a source of conflict. Divorce agreements can turn into disputes over accounting and spending.
Cohabitation Agreements
For those who cannot marry in Hawaii now that the 2008-09 legislative session did not pass the civil union bill, or those who do not wish to marry but desire some structure and perhaps some of the protections that the law affords those who marry, cohabitation agreements may be the best way to address financial and personal affairs. Cohabitation agreements are governed by contract law rather than family law (although be aware that criminal acts between co-habitating partners are charged as family abuse and not as simple crimes, usually bringing higher penalties). These agreements can be contracts for almost everything, except children and custody. They can cover tax matters, property and income divisions, alimony, the duties each owes to the other, and more. These are often more complex than prenuptial agreements because people entering a marriage can default to a defined structure (family law) and unmarried people must create their own structure. This means, however, that a cohabitation agreement will fully reflect the conscious choices of the couple - married couples often simply allow the law to set their default agreement. Although unmarried couples are denied many of the law's benefits given to married couples, a cohabitation agreement can be an opportunity to set out the parameters that are individually suited to that couple.
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