What are Marital Agreements?
Marital agreements address the rights and responsibilities of each spouse during the marriage, and how assets, liabilities, and other property might be divided if the marriage ends. These agreements may also address issues such as estate planning and life insurance.
As the titles imply, a prenuptial agreement is entered into by a couple before they are legally wed and does not go into effect until after they are married. A postnuptial agreement is drafted and signed after the couple is married.
Both are designed to protect each party’s separate and marital assets, share liabilities, and set parameters for division of assets and spousal support should the marriage fail or should one spouse die during the marriage. The latter is particularly important when protecting a business established by one party’s family or protecting the inheritance of children from previous relationships and the current marriage.
Marital agreements cannot determine child custody agreements and child support should the couple divorce.
Who Should Get One?
Many believe marital agreements only protect the assets of a wealthy spouse from a poorer one or are entered into because one or both of the parties believe the marriage will fail. Another myth is that pre- and postnuptial agreements harm the less wealthy spouse.
The fact is that well-crafted marital agreements protect both parties and can add a level of comfort to the marriage. An agreement can obligate a wealthier spouse to not leave a poorer spouse “high and dry” in a divorce. It can also establish a preemptive value for the marital contribution of a spouse who agrees to stay home to care for their children and for that spouse’s support should the couple divorce. It can also protect family-owned businesses, debt division, and inheritance for children from prior relationships.
The Benefits of Marital Agreements
In addition to protecting each spouse’s interests, marital agreements provide a legal contract that sets expectations and makes dissolving the marriage smoother and less stressful. They also allow the couple to decide how assets and responsibilities will be divided should they divorce, rather than having them divided according to state law.
Prenuptial agreements require that each party fully disclose all assets and debt. That knowledge is vital when couples entering marriage have conversations about their priorities and expectations for the marriage and in event of divorce. Once married, marital agreements protect both parties when there are changes in emotions, family, finances, and their relationship.
As with many other states, Kansas observes a variation of the Uniform Premarital Agreement Act to make agreements enforceable under Kansas law. The agreement must be in writing and signed by both parties. Both must be of legal age and have the mental capacity to enter into such a contract. Each party must have the time and opportunity to have their own attorney review the agreement prior to signing.
Although not strictly required by law, parties should fully disclose all assets, liabilities, and income and include a comprehensive list of them in the agreement. Failure to do so could cause the court to find the agreement unenforceable if it is challenged.
A court also may find the agreement unenforceable if the couple signs a prenuptial agreement but does not get married, that one party signed under coercion or duress, or that the agreement is noticeably unequal to one party.