Marital agreements are useful tools before or during a marriage, but they can sometimes be a difficult subject to raise. These agreements are useful to protect both spouses’ assets and interests if a divorce occurs and divide property more quickly. Often, marital agreements are associated with wealthy marriages, but they can be effective for any marriage. It’s important to understand the unique circumstances of your marriage to determine if a marital agreement is useful to protect your assets.
What Is a Marital Agreement?
A marital agreement includes prenuptial and postnuptial agreements. Prenuptial agreements are made by couples who are soon to be married, while postnuptial agreements are entered into after marriage. Marital agreements explain how assets will be divided if the couple divorces. This can make the actual process of divorce much faster.
Couples who divorce without marital agreements are still required to divide their assets. If they can’t agree during divorce proceedings, the court divides assets for them according to Kansas’s equitable distribution laws.
A marital agreement can cover specific aspects of property division and divorce, such as:
- Each party’s rights to marital and separate property, along with their abilities to buy, sell, transfer, or otherwise control that property
- How property is treated in cases such as divorce, separation, remarriage, or death
- The state that governs the marital agreement
- If a spouse will receive spousal maintenance, and the terms for its modification
- If spouses will create an estate plan based on the marital agreement
There are some things that a marital agreement can’t legally cover. It can’t determine child support or child custody, as those are decisions made by the court or parents if separation occurs. If the court deems any aspect of a prenuptial agreement to be unfair or unjust to a spouse, the provision will be dismissed.
Kansas is part of the Uniform Premarital Agreement Act, which is adopted by 28 states and the District of Columbia. This means that a marital agreement created in Kansas can also be valid in those other states if you and your spouse decide to move.
When Is a Marital Agreement Right for Your Marriage?
There are many reasons why a couple may benefit from a marital agreement. This includes:
- Couples where one or both parties own a business or part of a business
- Couples who have large inheritances, real estate, significant premarital assets, or significant income
- Marriages where one spouse is planning to not be working for a period of time to attend school, train for a career, or care for children
- Couples hoping to avoid divorce litigation
- Those who have already been married and divorced
- When one party in the marriage has significantly higher assets
- Couples who want to decide how assets are shared during a marriage
To determine if a marital agreement is an ideal solution for your marriage, talk with an experienced family law attorney.
Benefits of a Marital Agreement
Some individuals believe that creating a marital agreement leads to divorce. However, a marital agreement can provide spouses with financial security and certainty in their future marriage. Having a conversation about these important issues is also a sign of good communication in a marriage.
What Makes a Marital Agreement Invalid in the Court’s Eyes
There are several circumstances where a court may find a marital agreement to be invalid. A party involved in the agreement must prove one of the following:
- They didn’t enter into the marital agreement willingly.
- The agreement was unfair when it was signed. Before it was signed, the other party:
- Was not provided a truthful and reasonably complete disclosure of their spouse’s financial responsibilities or obligations.
- Did not waive their right to disclosure of this information in writing.
- Did not and could not have reasonably known these obligations.
It is illegal for a person to use fraud or coercion to get the other party to enter into a marital agreement.
Q: Why Would a Couple Want to Create a Prenuptial Agreement?
A: A prenuptial agreement can provide couples with financial security during their marriage and allows both parties to communicate about important financial issues. It allows asset protection and determination of inheritance rights. If the couple does end up separating, the process is quicker, less emotionally painful, and won’t be up to the discretion of the court.
Q: What Property Is Considered Shared Property in Kansas?
A: Shared, or marital, property in Kansas is any property, assets, and income that a couple obtains during their marriage until the date of separation. Kansas is an equitable distribution state, meaning that assets are divided equitably and not equally during a divorce. Property such as gifts or inheritance given to one spouse remain separate property, even if they were obtained during the marriage. Separate property is not up for asset division during a divorce, although it may be a consideration as the court determines what is an equitable division.
Q: What Are the Disadvantages of a Prenup?
A: A prenuptial agreement or other marital agreement can have negatives. If both parties fail to gain legal counsel, the agreement may not be legally enforceable, or it may leave out important aspects of a divorce. A marital agreement may also accidentally or purposefully favor one spouse. If a marital agreement favors one spouse, the other could suffer significant financial harm during a divorce if the court doesn’t strike down the agreement as unfair.
Q: Is a Marital Agreement Legally Binding in Kansas?
A: Martial agreements, including prenuptial and postnuptial agreements, are legally recognized in Kansas. However, if the court determines certain provisions to be unfair, it may not allow those provisions during a divorce. Additionally, there are situations where an entire marital agreement may be considered invalid. This may include one party not entering into the marital agreement voluntarily.
Q: Is Kansas a 50-50 Divorce State?
A: Kansas is an equitable distribution state, not a 50-50 divorce state. Instead of marital assets and property being divided equally, they are divided equitably. When dividing marital assets based on equitable distribution, the court reviews important factors, including:
- Each party’s amount of separate assets
- Contributions of each spouse to the marriage, financially and otherwise
- The conduct of each spouse during the marriage
- The length of the marriage
Ensuring an Enforceable Marital Agreement
At Stange Law Firm, we can help couples create and negotiate marital agreements. Contact our team to let us help you navigate this process.