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Kansas Prenuptial Agreement

From Wichita to Topeka, Kansas residents know that somewhere over the rainbow, there’s no place like home when you’re ready to start planning for married life in the Sunflower State!
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Welcome to the Kansas section of HelloPrenup! If you are planning to be married or live in Kansas during your marriage and are interested in creating a prenup that’s valid and enforceable in Kansas, you are in the right place.

Kansas Prenuptial Agreement Basics

A premarital agreement (which is usually called a “prenup” for short) is a contract between two future spouses who intend to marry. A prenup typically outlines the division of assets, liabilities, and spousal support in the event of separation, divorce, death, or some other event. Kansas prenups also require something known as “financial disclosure,” which is the requirement to share all the property and debt each person has with one another during the prenup process. Prenups are legally enforceable in Kansas and can be an excellent way to provide peace of mind to anyone getting married by setting expectations, protecting assets, and planning for the future. In Kansas, prenuptial agreements are governed by the Uniform Premarital Agreements Act (UPAA), which was adopted and codified by the Kansas State Legislature as the Kansas Premarital Agreement Act (KUPAA) in 1988 and later updated in 2011. Kansas’ UPAA version is pretty much identical to the original UPAA.

How to create a valid prenup in Kansas

Below are the necessary requirements for creating a valid prenup in Kansas (and what to avoid).

Requirements

  • Put the agreement in writing
  • Make sure both parties sign the prenup (HelloPrenup recommends signing your initials on each page, too!)
  • It is a good idea to get the prenup notarized!
  • Both spouses provide fair and reasonable disclosure on all property and financials. Parties are allowed to waive the right to disclosure in Kansas (HelloPrenup does not recommend waiving disclosure!)
  • Both partners sign the prenup voluntarily (i.e., NOT out of duress, undue influence, or some other type of force)
  • Do not include any clauses that are against the law, against public policy, or are unenforceable

Cannot include in Kansas:

  • Do not include any terms regarding child support or child custody
  • Neither party should sign the agreement involuntarily (i.e., under some type of force)
  • Neither party may hide or unfairly and unreasonably fail to disclose property and financial obligations, absent a waiver
  • Do not modify or eliminate spousal support to the extent that the modification or elimination causes one party to be eligible for public assistance or welfare (this will be thrown out by a Kansas judge)
  • Do not include unconscionable terms may be included (one-sided, deceptive, shocking or causing oppression or unfair surprise)
  • Do not include terms that violate criminal laws may be included
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Do I need an attorney for my Kansas prenup?

In short, not having a lawyer is not a prerequisite to a valid prenup in Kansas. There is no statute in Kansas requiring an attorney for a prenup. However, having the advice of counsel is a “significant factor” when determining the voluntariness of a premarital agreement under the Kansas UPAA. In fact, Kansas courts note that legal representation is “often the best evidence” that an agreement was signed voluntarily. Though, it is not the only evidence that a court considers. A Kansas court considers the following factors when determining if a prenup is entered into voluntarily and thereby enforceable:

  • The couple’s circumstances
  • The couple’s assets
  • The couple’s education level
  • Whether or not each party had legal representation
  • The prenup’s timing (i.e., when was it presented and signed)
  • The prenup’s content

The bottom line is that if one person ever challenges the prenup and argues that they didn’t enter it voluntarily and they also did not have a lawyer representing them, it will be one of the factors a court considers, along with all of the other circumstances of the case, to determine whether or not the agreement is enforceable.

What can you put in a Kansas prenup?

In Kansas, the law governs what couples can include in their prenup.. There a variety of matters in a prenuptial agreement, such as:

  • Rights and obligations of each party in any property, whenever or wherever it was or will be acquired
  • The right to buy, sell, use, transfer, or control property
  • The disposition of property upon separation, divorce, death, or any other event
  • The modification or elimination of spousal support
  • The making of a will, trust, or other arrangements to carry out the agreement
  • The ownership rights in and disposition of death benefits from a life insurance policy
  • The choice of which state’s law will govern the agreement
  • Any other matter that doesn’t violate public policy or a statute imposing a criminal penalty
    •  

The default law in Kansas on property division

So, what happens if you do not get a prenup? How will your property be divided in a divorce? Great question. Kansas is an equitable distribution state, so that means the court divides a divorcing couple’s property equitably, not necessarily 50/50.  When dividing property in a divorce, the court in Kansas takes into account the following factors to ensure a fair and equitable distribution:

  • The age of each spouse.
  • The length of the marriage.
  • The property owned by each spouse.
  • Each spouse’s current and future earning potential.
  • When, how, and from what source each property was acquired.
  • The family ties and responsibilities of each spouse.
  • Whether one spouse will be receiving spousal support (alimony).
  • If either spouse wasted or misused marital assets.
  • The potential tax implications of the property division for each spouse.
  • Any other relevant factors the court deems necessary to make a fair decision.

The only property that is subject to division in a divorce is property that is deemed marital property by a court. So… how does a court determine if something is marital property? In Kansas, property acquired during a marriage is generally considered marital property. This includes everything from houses and cars to retirement accounts and even professional goodwill. It doesn’t matter whose name is on the property or how it’s owned as long as it was obtained after the marriage began. Each spouse has an equal right to this marital property, and the court will decide how to divide it fairly in a divorce.

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The default law in Kansas on spousal maintenance

Spousal support, also known as alimony or “spousal maintenance” in Kansas, is a payment that one spouse may be ordered to make to the other during or after a divorce. The purpose of spousal maintenance is to limit any unfair economic effects of a divorce by providing ongoing income to a lower-wage-earning or non-wage-earning spouse. In Kansas, without an enforceable prenup, the court has broad discretion to determine whether to award spousal support, as well as the amount and duration of the support. Here are some of the factors a Kansas court may take into consideration when determining whether or not to award spousal maintenance: 

  • The age of the parties
  • The parties’ present and prospective earning capabilities
  • The length of the marriage
  • The property owned by the parties
  • The parties’ needs
  • The time, source, and manner of acquisition of property
  • Family ties and obligations
  • The parties’ overall financial situation.

Important prenup case law in Kansas

Sometimes, the courts will review prenups from actual Kansas couples who are divorcing, which leads to Judges writing and publishing decisions in what we call “case law.” Unfortunately, not every prenup has been drafted correctly according to the laws in Kansas, and those prenups sometimes are found to be unenforceable. We’ve gathered a few important cases that analyze some prenups and the laws in Kansas and that offer some insight into how the courts in this state treat agreements and couples in these situations.

KS Prenup Case Law:

Having a lawyer is not required but may be one factor in determining voluntariness
In 2022, the Kansas Court of Appeals decided the Matter of Marriage of O’Malley. In this case, a husband and wife signed a prenup three days before their wedding. The wife did not have her own attorney to look at the agreement, did not receive proper financial disclosure, and the husband said he would not go through with the wedding unless she signed. The couple had been together for almost a decade, so she signed it without fully understanding everything in it.  The Court found the premarital agreement to be unenforceable because it was not voluntarily signed by the wife. The court noted the following reasons why:

  • The agreement was presented and signed on the same day, just three days before the wedding.
  • Lack of financial disclosure
  • The husband made it clear to the wife that she had to sign the agreement for the wedding to proceed.

These factors led the court to believe that the wife did not sign the agreement freely and voluntarily but rather under duress and without full knowledge of her husband’s financial situation. The Court also found the agreement to be unconscionable because the husband’s financial disclosure in the prenup was inadequate according to the requirements in the Kansas law (he didn’t list any of his debts – only his assets!).  The bottom line? The wife needed more time to contemplate the agreement and hire a lawyer if she wanted one. She needed the opportunity to hire a lawyer, as it speaks to the voluntariness of her signing the agreement. In addition, proper financial disclosure must be given. This means sharing all of your assets AND debts with your future spouse. And finally, there must not be pressure to sign, such as presenting an agreement days before a wedding and telling your partner you won’t proceed with the wedding without signature.

But what happens to our vacation home?
In a case called the Matter of Marriage of South, the Kansas Court of Appeals discussed what effect a prenup might have on an out-of-state vacation home. In this case, a husband and wife had a valid premarital agreement in Kansas that specifically distinguished between what would happen to “marital property” and “joint property” upon divorce. The property in dispute was a vacation home in Sanibel Island, Florida.  The husband and wife disagreed about whether to classify it as marital or joint property. If it were classified as joint property, the wife would end up with an additional $500,000 in cash in the divorce. The case also examined which state’s laws defining joint property would control–Florida or Kansas. This mattered because the Florida definition of joint property was broader than the Kansas definition, and the wife would get $500,000 more if the Florida laws governed.  The Court ultimately held that Kansas laws would control because the premarital agreement incorporated a “choice of law provision” listing Kansas as the controlling state law. This resulted in the property being designated as marital rather than joint property, and the wife ended up with $500,000 less than she wanted. This case is a reminder to be careful about how property purchased during the marriage is titled in your prenup and which laws are going to govern the prenup.
A landmark prenup case in Kansas
A landmark Kansas case, Davis v. Miller, set the standard for evaluating prenuptial and postnuptial agreements. The court determined that the agreement in question was voluntary, considering factors like the couple’s circumstances, assets, education, legal representation, and the agreement’s timing and content. While having legal counsel is a significant factor, it’s not necessarily mandatory for a valid agreement.  The court also found the agreement wasn’t unconscionable (unfair) because it provided a reasonable disclosure of assets and debts, even without exact amounts, and the wife had a general understanding of the financial situation. Importantly, the court emphasized that both parties voluntarily entered the agreement, and the wife had the opportunity to seek legal advice.

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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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