Marital agreements, including prenuptial and postnuptial agreements, are useful for wealth protection and asset division. They’re commonly associated with wealthy couples who want to protect their assets from a potential divorce or shape inheritance rights. Marital agreements can be useful in any marriage and can effectively divide assets if the couple divorces.
Understanding a Prenuptial Agreement
A prenuptial agreement is a marital agreement entered into by a couple who is not yet married. It lays out each person’s right to shared and personal property. It also determines how property is divided in the event of divorce. This agreement only comes into effect once the couple is married.
A couple that doesn’t create a prenuptial agreement still has to divide assets, but they do so during the divorce process. If they are unable to come to a decision, the court will decide for them and follow Kansas’s property division laws.
Some believe that creating a prenuptial agreement indicates a higher likelihood of divorce. It’s more common, however, that a prenuptial agreement helps a couple achieve better security and financial certainty in the event of divorce and therefore are happier in their marriage.
Who Can Benefit From a Prenuptial Agreement?
Prenuptial agreements are useful to many people, including:
- Those who own a business, large inheritances, or other significant premarital assets
- Couples where one spouse is planning to take time off work to take care of children
- One or both spouses have significant premarital debt, such as student loans
- Those who want to avoid future litigation during divorce
- Couples who want to determine how to share finances during their marriage
- Those who have already been married and divorced and/or have children
A prenuptial can determine how each spouse will be financially provided for if divorce is necessary and what debts and assets each person is responsible for.
What Kansas Prenuptial Agreements Can Cover
In Kansas, a prenuptial agreement can cover rights and responsibilities such as:
- Each spouse’s right and responsibilities to marital and separate property
- Each spouse’s right to buy, sell, transfer, use, lease, assign, or control property in any similar way
- The treatment of property after separation, divorce, death, or another event
- Whether each spouse receives spousal support and the modification and termination rights of that spousal support
- Whether spouses will create a will, trust, or similar estate plan to act on the terms of the marital agreement
- If spouses receive death benefits from the other’s life insurance policy
- What state will govern the agreement
- Any other matter that is legal to include on a prenuptial agreement
Kansas is governed under the Uniform Premarital Agreement Act, so any premarital agreement made in Kansas is valid in the other states who adopted the act. The act applies to 28 states and the District of Columbia.
What Kansas Prenuptial Agreements Can’t Cover
A prenuptial agreement made in Kansas can’t determine child custody or support. The courts will not enforce decisions made about child custody or support that were made prior to separation or prior to the child being born. Those decisions are made by the parents or by the court at the time of separation.
Understanding a Postnuptial Agreement
Postnuptial agreements cover the same rights and responsibilities as a prenuptial agreement, the only difference being they are created after marriage. They are particularly useful to couples who have gone through a significant life change in their marriage. These changes may have affected the provisions in their prenuptial or require a marital agreement that the couple didn’t previously hold. It can provide couples with financial and life stability after significant changes.
When is a Marital Agreement Considered Invalid?
Kansas upholds premarital and postnuptial agreements unless one of the parties involved in the agreement can prove:
- The party didn’t enter into the agreement voluntarily
- The agreement was unfair and invalid when signed, and prior to signing, the following applied to the party:
- They were not given a reasonable disclosure of the other party’s financial obligations or property responsibilities
- They did not voluntarily and clearly waive their right to this disclosure in writing
- They did not have, and could not have reasonably had, knowledge of the other party’s financial obligations and property responsibilities
The burden of proof rests on the person claiming the contract is not valid.
Q: Is Kansas a 50-50 Divorce State?
A: Kansas is not a 50-50 property division state. Kansas is an equitable distribution state, meaning that all marital property is divided reasonably and equitably but not necessarily equally. The court uses factors such as each spouse’s non-marital assets, how each spouse conducted themself in the marriage, and the contributions of each spouse to the marriage to determine a reasonable and equitable division of property.
Q: What Is Considered Marital Property in Kansas?
A: Marital property in Kansas refers to assets and interests gained by a couple after they’re married. Marital property is considered owned by both spouses and therefore is equitably divided during divorce. Some property gained during marriage remains separate property, such as inheritance or gifts given to only one spouse or assets gained by use of separate property. Separate property is not part of asset division.
Q: Are Postnuptial Agreements Binding in Kansas?
A: Yes, postnuptial and other marital agreements are recognized by Kansas state law. There are some circumstances where a post- or prenuptial agreement is considered invalid: if one party can prove they didn’t enter into the agreement voluntarily or did not have the necessary information about the other party when the agreement was made.
Q: How Is 401k Split in Divorce Kansas?
A: A 401k may be considered separate and/or marital property. Any money put into the account prior to marriage is considered separate property. Any money added throughout the course of a marriage, and investment gains the money added, is considered marital property. Marital property is split equitably, not equally, between spouses, while separate property is kept to each spouse. In order to take money out of a 401k during divorce, the judge will issue a Qualified Domestic Relations Order (QDRO) to avoid financial penalties.
Stange Law Firm: Your Marital Agreement Attorneys
If you and your partner want to draft, negotiate, or modify a post- or prenuptial agreement, contact Stange Law Firm. We can make the process straightforward and ensure your interests are protected.