Pre-Nuptial & Post-Nuptial Agreements
Agreements in contemplation of marriage are becoming much more common than they were several years ago, and the Kansas Courts have responded to them accordingly. Kansas has adopted and codified the Uniform Premarital Agreement Act.
When determining what needs to go into a premarital agreement, you should limit yourself to property issues. Premarital agreements are used to specify items like property distribution, debt allocation, support payments, and matters involving gifts to the parties.
You are limited by a premarital contract in making any designation as to custody, parenting time, or child support. You must also be sure to follow all of the contractual requirements when entering these agreements such as a full disclosure of the assets, and parties must have the capacity to legally contract. No consideration/fee must be given for the agreement to be enforceable. K.S.A 23-804 lists the specific areas of marriage to which parties may contract in a premarital agreement. They are:
(1) The rights and obligations of each of the parties in any of the property of either, or both, whenever and wherever acquired or located;
(2) 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;
(3) the disposition of property upon separation, marital dissolution, death or the occurrence or nonoccurrence of any other event;
(4) the modification or elimination of spousal support;
(5) the making of a will, trust or other arrangement to carry out the provisions of the agreement;
(6) the ownership rights in and disposition of the death benefit from a life insurance policy;
(7) the choice of law governing the construction of the agreement; and
(8) any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
K.S.A. 23-807 covers the enforceability of premarital agreements. They are not enforceable if the party against whom enforcement is sought proves either of the following:
(1) That party did not execute the agreement voluntarily; or
(2) the agreement was unconscionable when such agreement was executed and, before execution of the agreement, all of the following applied to that party: (A) Such party was not provided a fair and reasonable disclosure of the property or financial obligations of the other party; (B) such party 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 (C) such party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid that eligibility.
Post-Nuptial Agreements
A Postnuptial contracts is virtually a separation agreement. Separation agreements are defined by 60-1610 (b)(3) and can designate items such as division of marital assets, debt allocation, spousal support, child custody, and child support. Matters settled by a settlement agreement incorporated in a divorce decree, other than matters pertaining to the legal custody, residency, visitation, parenting time, support or education of the minor children, shall not be subject to subsequent modification by the court unless the agreement provides for the modification or if the parties agree to it.