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PRE- AND POST-NUPTIAL AGREEMENTS
Congratulations on your upcoming marriage, or your existing marriage. Do you have questions about your property rights? Are you interested in a pre-nuptial or post-nuptial agreement to strengthen and/or clarify those rights?
Marriage in Kansas bring certain rights, including the right to bring property into the relationship, even a business which you can continue to operate and own as your sole and separate property. However, if it later becomes time to separate, Kansas law is written so that at the time of divorce any and all property of either party is subject to division/allocation and can be awarded in whole or part to the other party. In other words, for the purposes of divorce, all the properties of either party become “marital property” owned by both parties, subject to division to either party.
Divorce courts are courts of equity, which means their subsequent decisions about property and debt should be equitable, or fair, for both parties. As courts of equity, there is a good chance that upon divorce, your premarital properties, and even inheritances during marriage, will be awarded to you.
The purpose of a premarital agreement is to take away that element of chance. Parties to a premarital agreement may contract to clarify rights of the parties if there should be a separation. This includes the ability to agree concerning the rights and obligations of both parties regarding “marital property,” to manage and control “marital property,” and the proper disposition of marital property upon separation, divorce, death or any other designated event. It is also possible to contract regarding spousal support, choice of law, and other rights and obligations. If properly created and executed, courts will follow and enforce such agreements between the parties.
It is also possible to enter such contracts after marriage. The potential scope of post-marital agreements is only slightly narrower than for pre-marital agreements. At the time of separation, both pre and post-marital agreements will be subject to court review to ensure that ultimately the agreements are fair and “conscionable” in their terms. That examination by the court is typically more stringent for a post-marital agreement that for a premarital agreement.
The requirements to establish these agreements are relatively strict. Either choice provides you with a viable method to direct the disposition of property in the case of certain designated events, including but not limited to divorce. Consultation with an attorney is recommended if you or your spouse desire to create an enforceable pre-or post-marital agreement.