In 2022, the Kansas Court of Appeals decided the Matter of Marriage of O’Malley. In this case, a husband and wife signed a prenup three days before their wedding. The wife did not have her own attorney to look at the agreement, did not receive proper financial disclosure, and the husband said he would not go through with the wedding unless she signed. The couple had been together for almost a decade, so she signed it without fully understanding everything in it. The Court found the premarital agreement to be unenforceable because it was not voluntarily signed by the wife. The court noted the following reasons why:

• The agreement was presented and signed on the same day, just three days before the wedding.
• Lack of financial disclosure
• The husband made it clear to the wife that she had to sign the agreement for the wedding to proceed.

These factors led the court to believe that the wife did not sign the agreement freely and voluntarily but rather under duress and without full knowledge of her husband’s financial situation. The Court also found the agreement to be unconscionable because the husband’s financial disclosure in the prenup was inadequate according to the requirements in the Kansas law (he didn’t list any of his debts – only his assets!). The bottom line? The wife needed more time to contemplate the agreement and hire a lawyer if she wanted one. She needed the opportunity to hire a lawyer, as it speaks to the voluntariness of her signing the agreement. In addition, proper financial disclosure must be given. This means sharing all of your assets AND debts with your future spouse. And finally, there must not be pressure to sign, such as presenting an agreement days before a wedding and telling your partner you won’t proceed with the wedding without signature.

In a case called the Matter of Marriage of South, the Kansas Court of Appeals discussed what effect a prenup might have on an out-of-state vacation home. In this case, a husband and wife had a valid premarital agreement in Kansas that specifically distinguished between what would happen to “marital property” and “joint property” upon divorce. The property in dispute was a vacation home in Sanibel Island, Florida. The husband and wife disagreed about whether to classify it as marital or joint property. If it were classified as joint property, the wife would end up with an additional $500,000 in cash in the divorce. The case also examined which state’s laws defining joint property would control–Florida or Kansas. This mattered because the Florida definition of joint property was broader than the Kansas definition, and the wife would get $500,000 more if the Florida laws governed. The Court ultimately held that Kansas laws would control because the premarital agreement incorporated a “choice of law provision” listing Kansas as the controlling state law. This resulted in the property being designated as marital rather than joint property, and the wife ended up with $500,000 less than she wanted. This case is a reminder to be careful about how property purchased during the marriage is titled in your prenup and which laws are going to govern the prenup.

A landmark Kansas case, Davis v. Miller, set the standard for evaluating prenuptial and postnuptial agreements. The court determined that the agreement in question was voluntary, considering factors like the couple’s circumstances, assets, education, legal representation, and the agreement’s timing and content. While having legal counsel is a significant factor, it’s not necessarily mandatory for a valid agreement. The court also found the agreement wasn’t unconscionable (unfair) because it provided a reasonable disclosure of assets and debts, even without exact amounts, and the wife had a general understanding of the financial situation. Importantly, the court emphasized that both parties voluntarily entered the agreement, and the wife had the opportunity to seek legal advice.