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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.

http://www.usatoday.com/money/perfi/basics/2010-03-08-prenups08_CV_N.htm - 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 divorcerate.org shows that the divorce rate in America is 41% for first marriages, and a staggering 60% for second marriages.

Please see the end of this section for our fees for prenuptial agreements.

Prenuptial Agreements
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

(1) the rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
(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.

Postnuptial agreements are sometimes a good 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 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)

1. When you're in agreement with your future spouse/cohabitation partner and have all of your financial information, 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: $1700

2. Standard flat fee: $2,500

3. If you need the agreement within two weeks: additional $500

4. We also offer our standard hourly fee arrangement.

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