Frequently Asked Questions About Prenuptial & Postnuptial Agreements
Are premarital agreements valid?
Yes. In Kansas, premarital agreements are specifically recognized by state law. K.S.A. 23-802 defines a “premarital agreement” as one between prospective spouses made in contemplation of marriage and to be effective upon marriage.
What are the differences between premarital agreements, prenuptial agreements and antenuptial agreements?
They are different names for the same thing. A postnuptial agreement is entered into after marriage. A separation agreement, sometimes referred to as a property settlement agreement, is drafted in conjunction with a divorce or legal separation.
What types of property can be addressed in the premarital agreement?
The future spouses can make provisions for any interest in property, whether that interest is present or future, legal or equitable, vested or contingent, in real estate or personal property, including income and earnings.
What other rights can be addressed in a premarital agreement?
Kansas law allows future spouses to make a contract with each other regarding the following areas:
- The rights and obligations of each of the parties in any of the property of either, or both, 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 upon separation, marital dissolution, death or the occurrence or nonoccurrence of any other event
- The modification or elimination of spousal support
- 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 of the agreement
- Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty
Are there any issues that cannot be included in a premarital agreement?
Yes, there is an important limitation. The parties may not make provisions that adversely affect child support.
When does a premarital agreement become effective?
It becomes effective upon the marriage of the parties.
Can a premarital agreement be changed at a later time?
Yes. After marriage, a premarital agreement may be amended or revoked, but only by a written agreement, signed by the parties. The amended agreement or the revocation is enforceable without consideration, meaning that no payment has to change hands for the modification to be effective.
Can a premarital agreement be declared invalid if one party forced the other party to sign?
In Kansas, a premarital agreement is not enforceable if the party against whom enforcement is sought proves either of the following:
- That party did not execute the agreement voluntarily
- The agreement was unconscionable when such agreement was executed and, before execution of the agreement, all of the following applied to that party:
- Such party was not provided a fair and reasonable disclosure of the property or financial obligations of the other party.
- 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.
- Such party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
Is it easy to prove that a prenuptial agreement was not executed voluntarily?
It is difficult to prove that someone was forced to sign against their will. “Contracts are presumed legal and the burden rests on the party challenging the contract to prove it is illegal.” Kansas Gas & Electric Co. v. Will Investments, Inc., 261 Kan. 125, 129, 928 P.2d 73 (1996).
Who should have a prenuptial agreement?
It is very important for anyone who has children and is entering into a second marriage to have a premarital agreement. In addition, persons who have great differences in wealth or earnings should have a premarital agreement to determine their future rights and entitlements. Anyone who desires to specify what should happen in the event of divorce or the death of a spouse should consider a premarital agreement.
Are there other reasons to have a premarital agreement?
Yes. While formulating a premarital agreement, prospective spouses think carefully about the future. Many areas of potential conflict concerning money and property can be discussed and resolved before the marriage takes place. I
f a divorce occurs, the premarital agreement will likely control the division of property between the parties, as well as the issue of spousal maintenance, formerly known as alimony. If a premarital agreement was used, the time, cost, and conflict of a divorce is often greatly reduced.
In the event of one spouse’s death, the division of property provisions of the premarital agreement can prevent conflict and lawsuits between the surviving spouse and step-children.
At Ankerholz and Smith in Johnson County, we believe premarital agreements are a useful tool for people about to enter into marriage. We encourage future spouses to develop their premarital agreement well in advance of the wedding date.
This allows both parties the time to maturely analyze their options with their respective lawyers. By completing the agreement early, the happy couple can concentrate on their wedding preparations, and fully enjoy the wedding day and their new life together!
Still Have Questions? Contact Ankerholz & Smith
Call our office in Overland Park at or email us to get answers to your prenup and postnuptial agreement questions.