A prenuptial agreement is a written contract between two parties who are about to enter into marriage. The prenuptial agreement sets forth the terms of the possession of assets, the treatment of future earnings, how each person's property is to be controlled, as well as potential division of the assets if the marriage ends in divorce or either party dies. Prenuptial agreements are relatively common, especially in cases where both parties have substantial assets, high income, children from a previous marriage, or have had a bad experience with a prior divorce.

The Uniform Premarital Agreement Act (UPAA) is a uniform act governing prenuptial agreements; it was drafted by the National Conference of Commissioners on Uniform State Laws in 1983. Currently 27 states have adopted the UPAA, including the state of Hawaii. With the Uniform Premarital Agreement Act which was promulgated by the ULC in 1983 and adopted by 26 jurisdictions since, the UPAA has brought consistency to premarital agreements under the law, especially concerning rights in the event of divorce.

In Honolulu, premarital or prenuptial agreements and how they are enforced by the courts is covered under HRS §§ 572D to 572D-11. Under this chapter, a prenuptial agreement must be in writing and signed by both parties, it is enforceable without consideration. The parties to a prenuptial agreement may contract to:

• The rights and obligations of each person in regards to any property that belongs to either person whenever and wherever the property was acquired or located;
• The right to buy, sell, use, exchange, lease, mortgage, or otherwise manage the control of property;
• The disposition of such property upon separation, divorce, death, or the occurrence or nonoccurrence of any other event;
• The modification or elimination of alimony or spousal support;
• The creation of a will or trust;
• The ownership rights in a life insurance policy or the disposition of a death benefit;
• The ability to choose the law governing the construction of an agreement; and
• Any other relevant matter including those that pertain to personal rights and obligations providing it is not in violation of local or state laws imposing criminal penalties.

Note: Prenuptial agreements have no effect on the rights to child support; the right to child support cannot be adversely affected by any prenuptial agreement.

The premarital agreement goes into effect once the two parties enter into marriage. After the marriage has taken place, a premarital agreement may be amended or revoked only in cases where the modifications or revocation is signed by both parties; the amended premarital agreement or the revocation is then legally enforceable without consideration.

A properly executed prenuptial agreement is legally enforceable and binding in any action unless the spouse whom enforcement is being sought can prove that he or she did not execute the agreement voluntarily; that the agreement was unconscionable at the time of execution; and before execution of the agreement the party was not provided a fair and reasonable disclosure of the property, or the other party's financial obligations.

Creating a sound prenuptial agreement will allow you to dissolve your marriage in the manner that you choose as opposed to having to rely on Hawaii's state laws should your marriage come to a divorce. The state of Hawaii is an "equitable distribution state," meaning that if the couple cannot agree, the courts will divide the couple's assets in a way that it believes if fair and equitable, not necessarily equally. Therefore, if you wish to make any non-traditional or specific allocations then such wishes should be clearly outlined in a prenuptial agreement, otherwise in the event of a divorce the courts may ultimately make the decision for you, and this is a risk that not everyone is willing to take.

If you are entering marriage and believe that you would benefit from a prenuptial agreement, I suggest you contact me at my firm, the Law Office of Steve Cedillos. I have over 20 years experience handling prenuptial agreements and all other aspects of family law and divorce. As a Honolulu family lawyer, I am intimately familiar with the UPAA and Hawaii's state laws in regards to marriage and family law, and I can help you draft a sound and enforceable prenuptial agreement that will protect your best interests and allow you to have peace of mind knowing that those rights are comprehensively covered.