Hawaii Prenuptial Agreements
Aloha! Welcome to (arguably) the most beautiful US state–Hawaii. If you live in the tropical state of Hawaii, LUCKY YOU! Before tying the knot with your luau-loving future spouse, make sure you consider getting a Hawaiian prenup. Keep reading to learn everything you need to know about getting a prenup in Hawaii.
Hawaii Prenuptial Agreement Basics
In the state of Hawaii, the term “premarital agreement” is used to describe a contract formed between two people planning to get married (better known as a “prenup”). Premarital agreements in Hawaii are governed by the Hawaii Uniform Premarital Agreement Act or “HUPAA” (Chapter 572D). The HUPPA sets forth specific guidelines for the construction and enforcement of such agreements. These agreements are enforceable upon the date of marriage. This means if you don’t end up getting married, your prenup isn’t valid.
Prenup requirements in Hawaii
The good news is that Hawaii has pretty much copy and pasted the Uniform Premarital Agreement Act (UPAA) as their own statute for Hawaiian prenups. For some background, the UPAA is the standardized act that approximately 28 states have adopted to create consistency across the US regarding how prenups are created and enforced.
So… what makes a Hawaiian prenup “legit,” as the kids say? It’s pretty straightforward. We discuss what to do and what not to do below:
Requirements
- Put the contract in writing
- The prenup must be signed (HelloPrenup recommends initialing each page, though it’s not a hard requirement)
- HelloPrenup recommends notarizing your Hawaiian prenup, though it’s not a hard requirement
- Provide financial disclosure of all of your assets and debt (no you cannot skip any assets and yes you both must provide full financial disclosure)
- The prenup must be entered into voluntarily (no duress, coercion, etc.)
- The prenup must not be overly one-sided (I.e., it must not be unconscionable)
- The prenup must contain lawful clauses (nothing illegal or against public policy)
Cannot include:
- Do not include clauses about child support or custody
- Do not include clauses that are unlawful
- Do not include clauses that are against public policy
- Do not skimp on financial disclosure
- Do not enter the agreement involuntarily (i.e., under duress or coercion)
- Do not enter an agreement that is unconscionable
Note: Even with a spousal support waiver clause, a Hawaiian court retains the authority to order spousal support if it’s deemed necessary to prevent one spouse from needing public assistance.
>>For the fine print on the requirements of a Hawaiian prenup, see (Haw. Rev. Stat. § 572D-2), (Haw. Rev. Stat. § 572D-3), and (Haw. Rev. Stat. § 572D-6).
Do I need an attorney for my Hawaiian prenup?
Having legal advice is not a prerequisite to a valid prenup in Hawaii. There is no explicit Hawaiian statute requiring legal representation for a prenup. However, case law in Hawaii explains that the opportunity to consult independent legal counsel (a.k.a., an attorney) will be one of several factors it considers when determining the enforceability of an agreement. For example, in the 2020 case known as L.R.O v. N.D.O., the wife, a Vietnamese national whose first language was not English and who had corresponded with her husband electronically before they met and got married, voluntarily executed the premarital agreement. The court noted that just because she didn’t have an attorney didn’t mean she didn’t voluntarily enter the agreement.
What can a Premarital Agreement Include?
So what can you actually include in your Hawaiian prenup? The HUPPA (That is, the Hawaiian Uniform Premarital Agreement Act) explicitly states what you can and cannot include in the Hawaiian Revised Statutes, Section 572D-3.
Here’s a breakdown of what you can include in your prenup:
- How property is owned and managed during the marriage
- Ownership of debt
- What happens to property in case of divorce, separation, or death
- Modification or elimination of spousal support
- Making wills or trusts
- Life insurance benefits
- Which state’s laws apply to the agreement (i.e., choice of law)
- Any other personal rights and obligations, as long as they’re legal
On the other hand, a Hawaiian prenup cannot include matters related to child support or custody. Child support is the right of the child and not for the parents to contract around.
Spousal support in Hawaii (a.k.a., alimony)
Hawaii uses the term “spousal support” to refer to payments made by one ex-spouse to another in the event of a divorce (this is also commonly referred to as “alimony”).
Without a prenup, how spousal support is determined in Hawaii is up to the court’s discretion based on a set of statutory factors. These factors include each person’s financial resources, ability to support themselves, length of the marriage, and standard of living during the marriage. They also look at factors like age, health, job skills, and childcare responsibilities. The goal is to understand the financial situation of both parties and determine if one person needs support and how long they might need it.
The court can order support for an indefinite time or a specific period if it’s for things like getting back into the work force (Think: job training or education).
>>For the fine print on spousal support in Hawaii, check out Haw. Rev. Stat. § 580-47 here.
Who should get a prenup in Hawaii?
Premarital agreements are not only for wealthy people. They are for anyone looking to ensure their future is planned for the way they wish in case of death or divorce.
Here are some people who should consider getting a prenup in Hawaii (or any state for that matter):
- You own property and want to ensure it stays in your possession
- You have bank accounts, investment accounts, or other accounts you want to protect
- You want to ensure any wealth you gain over the course of the marriage stays separate
- You may inherit money or other property from your parents or other family one day
- You are on your second marriage and want to protect what assets you have left after the first divorce
- You want to ensure your assets stay with your children from another relationship, and not go to a potential ex-sposue one day
- You own a business now or plan to start one in the future and want to ensure it stays separate property
- You or your partner has significant debt or plan to take out significant debt
- You want peace of mind that you’re protected in any scenario
And that’s not all folks, here are some more examples of who would benefit from a prenup in Hawaii.
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Property division in Hawaii
Without a prenup, what happens to your property under the default laws of Hawaii? Well, for starters, you should know that Hawaii is an equitable distribution state, which means things aren’t automatically split 50/50. Instead, the court uses a set of factors to determine how to divide up the property in a divorce. And the split may be 50/50 but it could also be an uneven split like 60/40, 70/30, and so on and so forth.
When dividing property in a divorce, Hawaii uses a unique approach called the Marital Partnership Model. It categorizes property as either pre-marital separate property, marital separate property, or marital partnership property. If something is categorized as pre-marital separate property or marital separate property, then it is not divided in a divorce. This includes assets that were acquired before the marriage, gifts, inheritances, and assets maintained by other separate assets. If something is considered marital partnership property, then a court will make a determination on whether or not to deviate from the standard 50/50 split.
>>For the fine print on property division in Hawaii, check out Haw. Rev. Stat. § 580-47 here.
How to end a marriage in Hawaii
To file for divorce in Hawaii, you must live in Hawaii for six months prior to filing for divorce. Hawaii is a “no-fault” divorce state, meaning that neither party may point blame on the other and the single reason for divorce is “irreconcilable differences.” A divorce may also be filed because one party has lived apart for a minimum of two (2) years. (Haw. Rev. Stat. § 580-41).
Important prenup cases in Hawaii
Let’s dive into some real Hawaiian case law which provides insights into what really happens when an ex-spouse challenges the enforceability of a prenup.
Hawaii Prenup Case Law:
What a Hawaiian court does NOT consider unconscionable and involuntary
Silverstein and Prell married in 1983 after signing a handwritten prenup stating that they would not claim each other’s assets in case of divorce or separation. At the time of the prenup, neither party had any significant assets. During their marriage, Silverstein received a significant inheritance from his family.
This case arose because during the divorce proceedings, Prell wanted to throw the prenup out, whereas Silverstein wanted to uphold the agreement. Prell argued that she did not sign the agreement voluntarily and the terms were unconscionable (overly one-sided).
The court disagreed with Prell. She testified that she signed the agreement “to humor him” which wasn’t enough to say that it wasn’t voluntary.
As for whether or not the agreement was overly one-sided (i.e., unconscionable), the court said it would have to either leave one person with an unjustly disproportionate economic situation and/or be an unfair surprise (meaning one party did not have knowledge of the other’s finances). The court said neither were true here.
When the agreement was signed, both parties had minimal assets, so the terms weren’t overly favoring one side. The inheritance received later wasn’t a factor when the agreement was made. There was no element of financial surprise as both parties knew the other had no assets.
The Hawaiian Supreme Court take on unconscionability
This 1980’s Hawaiian case laid the law of the land for enforcing prenups. It essentially created a test for determining when a prenup should be considered unconscionable (overly unfair), and therefore, thrown out.
Mr. and Mrs. Lewis entered into a premarital agreement in 1970 in New York which stated that Mrs. Lewis would get $1000 per month in spousal support until death or remarriage. They later divorced in 1985, and the enforceability of the prenup was raised. Mrs. Lewis argued to get the prenup thrown out because she was able to get $2500 per month in spousal support which was clearly more than she bargained for in the prenup. Her argument was that the original agreement for $1000/month was unconscionable.
The Hawaiian Supreme Court explained how unconscionability should be determined:
– One-sidedness: The prenup leaves one spouse in an “unjustly disproportionate” economic situation.
– Unfair surprise: One spouse did not have full and adequate knowledge of the other party’s financial situation when the prenup was made.
The Court also noted that the unconscionability of spousal support provisions in a prenup, specifically, had to be evaluated at time of divorce by considering all relevant factors and circumstances, including those occurring after execution of agreement.
The court here remanded the case to the lower court for more findings to determine the issue of unconscionability of the spousal support at the time of the divorce.
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The information on this page was last updated in July, 2024. Hello Prenup provides a platform for self-help. The information provided by Hello Prenup along with the content on our website related to legal matters (“Legal Information”) is provided for your private use and does not constitute legal advice. We do not review any information you provide us for legal accuracy or sufficiency, draw legal conclusions, provide opinions about your selection of forms, or apply the law to the facts of your situation. If you need legal advice for a specific problem, you should consult with a licensed attorney. Neither Hello Prenup nor any information provided by Hello Prenup is a substitute for legal advice from a qualified attorney licensed to practice in an appropriate jurisdiction.
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