A premarital or prenuptial agreement—also known as a prenup—is an agreement between prospective spouses made in contemplation of marriage and is effective on marriage. A premarital agreement must be in writing and signed by both parties.

Laws vary from state to state, but the rights and obligations the parties may agree to in a premarital agreement may include:

• the rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;

• the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;

• the disposition of property on separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;

• the modification or elimination of spousal support or alimony;

• the making of a will, trust, or other arrangement to carry out the provisions of the agreement;

• the ownership rights in and disposition of the death benefit from a life insurance policy;

• the choice of law governing the construction and interpretation of the agreement; and

• any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

Child Support May Not Be Adversely Affected by a Premarital Agreement

The right of a child to support may not be adversely affected by a premarital agreement.

Reasons A Premarital Agreement May Be Unenforceable

A premarital agreement is not enforceable if the party against whom enforcement is requested proves that:

• the party did not sign the agreement voluntarily; or

• the agreement was unconscionable when it was signed and, before signing the agreement, that party: (1) was not provided a fair and reasonable disclosure of the property or financial obligations of the other party; (2) did not voluntarily and expressly waive (in writing) any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and (3) did not have and could not reasonably have had adequate knowledge of the property or financial obligations of the other party.

A question of unconscionability of a premarital agreement is usually decided by the court as a matter of law rather than by the jury as a matter of fact.

Law is Often Located in State Statutes

In many states the law regarding premarital or prenuptial agreements is located in the state’s statutes—often in the family code or domestic relations code.

In Hawaii, premarital or prenuptial agreements (prenups) are recognized and enforceable. These agreements are contracts entered into by prospective spouses before marriage and take effect upon marriage. Under Hawaii law, a prenup must be in writing and signed by both parties to be valid. The content of a prenup can cover a wide range of matters, including the management and control of property, disposition of property upon divorce or death, spousal support, and the creation of wills or trusts. However, it cannot adversely affect child support obligations. For a prenup to be enforceable, it must have been entered into voluntarily and without unconscionability at the time of signing. Unconscionability can be found where there was a lack of fair and reasonable disclosure of financial obligations, no written waiver of further disclosure, or an inability to have adequate knowledge of the other party's finances. The enforceability of a prenup is typically determined by the court. Hawaii's statutes regarding prenuptial agreements can be found in the state's family code or domestic relations code.