Prenuptial/Postnuptial Agreements

mitsuyama + rebman lllc

Among the trends in prenups, protecting your intellectual ideas:

Another trend in both prenups and postnups is setting out agreement on embryos, eggs, and sperm stored for assisted reproductive efforts. We do not encounter these issues often in Hawaii.

Prenups and postnups are not just for the rich or business owners. They are also not just for people who are “preparing to fail.” 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 pattern.

This article, "Prenuptial agreements: Unromantic, but important," quotes Suze Orman, "Hope is not a financial plan. The time to plan is not when you're in a state of hate." As difficult as it is to think of your partner and hate in the same sentence, a visit to shows that the divorce rate in America is 41% for first marriages, and a staggering 60% for second marriages.

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 pre- or post-marital agreement may contract with respect to almost anything: property rights, spousal support, estate planning, life insurance, and personal rights and obligations.

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, or for another reason.

If your prenup was entered into before July 1, 1987, then 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." That means that 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. These agreements must be written very carefully, and much thought should go into them before spouses sign.

Postnuptial agreements are sometimes a workable alternative to a legal separation. When a couple is uncertain about whether they'll stay together but need some finality in financial matters, a postnuptial agreement can set out a blueprint for civility and certainty in the marriage and in any future divorce.

Cohabitation Agreements

For those who do not wish to enter into a civil union or marry but desire some structure and perhaps some of the protections that the law affords those who marry, cohabitation agreements address financial and personal affairs.

Cohabitation agreements are governed by contract law rather than family law (although 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 contracts are often more complex than prenuptial agreements because people entering a marriage or a civil union 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.

Fees (plus tax)

When you're in full agreement with your future spouse/cohabitation partner and have all of your financial information, and we agree that the agreement is legal and proper, we review your financials and living situation with you, give you advice, draft the agreement and disclosures, communicate with your partner or her/his attorney, and make up to two changes to the agreement during the process: $3,000
For all other cases, the standard hourly fees apply. Retainers will be determined on a case-by-case basis.