Just before a wedding is usually a joyous time when most couples are thinking about events such as merging their lives, purchasing a new home, and maybe expanding their family. It is not a time when anyone wants to think about divorce. But practically speaking, if there are certain assets you want to protect in the event of a divorce, you’ll need to think ahead and consider a pre- or post-nuptial agreement.
A prenuptial agreement is a written document executed before a couple gets married that confirms a couple’s agreement to what will happen to their assets and income in the event of a divorce. A postnuptial agreement is essentially the same thing but is executed after the couple marries.
When it comes to the division of assets in the event of a divorce, generally speaking, the state of Hawaii uses what is known as partnership principles, which usually means that each spouse is entitled to 50 percent of the couple’s marital assets and responsible for 50 percent of the couple’s marital debt. However, a pre- or postnuptial agreement can designate property that you want to ensure is excluded from those partnership principles in the event of a divorce. Whoever is awarded specific assets in a prenuptial agreement may also retain any increase in its value incurred from the beginning of the marriage to the time of divorce. Hawaii law does require pre- and post-nuptial agreements to be fair, so they are not so one-sided as to “shock the conscience.”
Pre- and post-nuptial agreements can narrowly tackle other marital issues, such as alimony, but they can never address child custody or visitation. Here are some reasons why you might seek a prenuptial agreement:
- You own a home that you wish to keep in your family.
- You intend to keep a family inheritance that was given exclusively to you along with any increased value that is realized during the marriage.
- If your spouse brings a significant amount of debt to the marriage and you don’t want to be responsible for it.
- If one spouse’s income is significantly higher than the other’s.
- If you are a business owner and wish to avoid division of the business in the event of a divorce.
- If you wish to retain any other asset in your possession (such as a car or a trust fund) in the event of a divorce.
Although discussing and completing a prenuptial agreement can be stressful, it can also provide peace of mind and lessen conflict in the event of a divorce. Seth Harris, a senior associate at the PMK family law division, can represent you through the process of drafting and finalizing a pre- or post-nuptial agreement and provide compassionate, experienced counsel for any other divorce needs. For more information, go to: www.hawaiilegal.com/practice-areas/family-law-2/.
