Understanding Marital Agreements

by Sheryll Bonilla, Esq.

A marital agreement (a pre-nuptial or post-nuptial agreement) is a record of the understanding between spouses who decide in advance what will be done in the event of divorce and death. It is the safest way to avoid the cost, uncertainty and chaos that commonly occurs in these situations.

Divorce is often costly. A typical contested divorce in Hawaii averages $20,000 in attorney’s fees on both sides, where the couple is only fighting about property division.

Throw in disagreements about the value of the property being divided, or the custody and visitation of the children, and a couple can expect to spend up to double that amount. A large debt at a strongly disruptive period in one’s life only adds to the financial drawbacks and adjustments each person has to make.

Divorce is also an emotional time. The legal process for contested divorces can last to two to four years on average. Going through a drawn-out period of stress and strife leaves its imprint on the spouses and children, straining their relationships, and making it hard to focus and do their best in other aspects of life, such as school and work. Knowing the outcome reduces the emotional strain. A common situation where a marital agreement is used is when one person comes into the marriage already owning a home. A woman who has worked hard to save a down payment for a house she bought as a single person, may want that home to remain hers to keep if the marriage later ends in divorce, rather than losing it to her husband (or worse, his girlfriend) and finding herself without a stable residence or with a lessened ability to purchase a new home after having children.

Without an agreement, the Family Courts in dividing up the property often order the sale of the marital residence with a split of the sale proceeds, usually without reimbursing the one who sacrificed and saved up for the down payment. A marital agreement can help the woman protect her ownership of her home. It can also cover child custody and visitation and other issues.

Death is inevitable, and a marital agreement gives protection to the intent of the spouses with respect to how their hard-earned money is given after their deaths. Hawaii’s probate laws generally protect a surviving spouse, even to the extend and exclusion of children the deceased may have from prior relationship.

Too often the children from a first marriage find that their stepsiblings from a parent’s remarriage inherit the home and other property that they believed they are rightfully entitled to receive from their parents.

The reverse also happens: a second wife may find that her husband conducted a “property grab” without her knowledge, giving all of their property to the children of his first marriage when he dies, thus leaving her homeless and poor in her old age. A marital agreement can protect spouses’ long-term plans for financial security and provision for loved ones from prior relationships, in the event of death.

Marital agreements – whether these are made before or after the wedding takes – place can be helpful in minimizing the high financial costs and emotional stresses of a later divorce and giving certainty to the property distribution plans of spouses after they die.

The feeling of keeping some control over one’s life in these tumultuous events can give a peace of mind and a measure of comfort and uncertainty that helps individuals deal with the grief of loss and move on with life.

This article is for informational purposes only and is not to be constructed as offering legal advice. Please consult an attorney for your individual situation. The author is not responsible for a reader’s reliance on the information contained here