Premarital Agreements In Kansas

So, you want to get married, and you are deciding what the next step is. You have heard of these things called prenuptial agreements. , but you’re not really sure what they are.

1) What is a prenup?

A prenuptial (“prenup”) agreement is essentially a contract between two people considering marriage that establishes rights to property and support in the event of divorce or death. It is not, as some would say, an early admission of defeat. First of all, conversations about finances and assets are important before entering into marriage. In order for a prenup to be enforceable, each person must have made a full disclosure of all their financial interests. These conversations make sure that a couple is on the same page, and have been open and honest with each other. For example, will the couple have combined or separate finances? Is there a large debt in the name of one person that will loom over the marriage? Is there a family inheritance that one person wants protected for their children from another marriage? Simply having these crucial conversations can, in fact, help a couple avoid problems in the marriage.

2) What are the requirements of a prenup in Kansas?

Kansas law does recognize Prenuptial Agreements. (K.S.A. 23-2401 et seq.). First and foremost, the agreement must be in writing. It must be entered into freely and without pressure. The earlier before the wedding, the better. It must be fair. This does not mean that that everything must be equally divided, it just means that it cannot be so one-sided as to be unconscionable. An example of this is that a prenup cannot deny spousal support if it will place one person on state assistance. Both parties must have fully disclosed all financial interests prior to entering the agreement. It is strongly encouraged that each person have their own attorney review the document to be sure that their individual rights are protected and that one person does not have an unfair advantage. It becomes enforceable after the marriage. It can be modified or revoked after the marriage, under the same conditions. (Must be in writing, fair, etc.)

3) What do prenups cover?

Prenups can help establish the rights of each party in property acquired by either party, either before or after the marriage, the right to mortgage, sell or control that property, what happens to certain property in the case of divorce or death, the right to spousal support in the case of divorce or death, the right to make a will or designate life insurance beneficiaries in accordance with the agreement, it will usually dictate the choice of law that governs the agreement, and any other matter that is not in violation of public policy or imposing a criminal penalty. Prenups cannot change any requirement for one spouse to pay the other child support. (K.S.A. 23-2404)

4) Do I need a Prenuptial Agreement?

Only the couple can determine this. Situations where this might be strongly advisable.

• When there are children from previous relationship and you want to be sure that certain property is protected for their benefit in case of divorce or death.
• When either or both parties have significant assets or business interests that need to be protected.

It is important, before entering into a prenup, that the parties know what their rights would be if the don’t.

• Without a premarital agreement, the parties may own separate property, real or personal, during the course of the marriage, but, upon filing for divorce all that property will be deemed marital property subject to equitable division by the court upon divorce.
• Without a premarital agreement to the contrary, a divorce court can divide all pension, retirement plans, and 401(k) plans of the parties, whether such benefits were earned prior to or during the marriage.
• Without a premarital agreement to the contrary, upon filing for divorce a spouse may be entitled to temporary maintenance while the marriage is pending as well as permanent maintenance once the divorce is finalized.
• Without a premarital agreement to the contrary, a district court may require one divorcing spouse to pay the debts and obligations of the other.
• Under the laws of intestacy in Kansas, it is possible a surviving spouse could receive up to 100 percent of a deceased’s estate, and a surviving spouse is entitled to renounce the terms of decedent spouse’s will, and is then entitled to up to one-half of the decedent’s augmented estate.

5) Do I need a lawyer?

Prenup agreements can be very complex and complicated documents. In order for a prenup to be enforceable, it is strongly encouraged that each person to the agreement meet with their own attorney.

If you do decide to move forward, here is a list of critical items that you should discuss with your soon-to-be spouse: Premarital Advisory. If, after speaking with your spouse, you decide to start the process, please contact our office to complete a necessary list of questions,