§572-22  Contracts.  (a)  A married person may make contracts, oral and written, sealed and unsealed, with the married person's spouse, or any other person, in the same manner as if the married person were sole.

     (b)  An agreement between spouses providing for periodic payments for the support and maintenance of one spouse by the other, or for the support, maintenance, and education of children of the parties, when the agreement is made in contemplation of divorce or judicial separation, is valid; provided that:

     (1)  The agreement shall be subject to approval by the court in any subsequent proceeding for divorce or judicial separation; and

     (2)  Future payments under an approved agreement shall nevertheless be subject to increase, decrease, or termination from time to time upon application and a showing of circumstances justifying a modification thereof.

     (c)  All contracts made between spouses, whenever made, whether before or after June 6, 1987, and not otherwise invalid because of any other law, shall be valid. [L 1888, c 11, §2; RL 1925, §2994; am L 1931, c 146, §1; RL 1935, §4645; am L 1939, c 17, §1; RL 1945, §12366; am L 1945, c 5, §1; RL 1955, §325-2; HRS §573-2; am L 1969, c 222, §1; am L 1976, c 200, pt of §1; ren and am L 1984, c 79, §2; am L 1987, c 194, §1; am L 2019, c 111, §40]

 

Revision Note

 

  "June 6, 1987" substituted for "the effective date of this Act".

 

Law Journals and Reviews

 

  Agreement for alimony and settling property rights in contemplation of divorce or separation; effect thereof; enforceability by contempt proceedings.  Haw. Supp, 4 HBJ, no. 4, at 18 (1967).

 

Case Notes

 

  Before June 23, 1888:  Contract of wife for personal service voidable at instance of husband, not void.  1 H. 467 (1856).  Separated wife domiciled in foreign country could contract with husband domiciled in Hawaii.  10 H. 138, 144 (1895); 10 H. 614, 622 (1897).

  After June 23, 1888:  Wife may be surety for husband.  20 H. 47 (1910).  Or agent for husband.  17 H. 481 (1906).  Married woman may contract for necessaries.  19 H. 494 (1909); 20 H. 598 (1911).  And may recover on joint note of husband and others against such others.  27 H. 369 (1923).  Suretyship.  33 H. 226 (1934).  Resulting trusts.  34 H. 363 (1937); 40 H. 593 (1954).  Assignment of leasehold may be made by husband to wife, being in the nature of a gift, and not a contract under this section.  16 H. 731 (1905).  See 4 U.S.D.C. Haw. 547, 561 (1915).

  Approval of divorce judge not required for valid property settlements not technically alimony.  41 H. 89 (1955).

 Child support agreement, modification thereof, court's inherent power over welfare of child.  52 H. 480, 478 P.2d 852 (1971).

  Agreement for periodic payment, merely approved by court, is not incorporated into divorce decree.  53 H. 123, 488 P.2d 537 (1971).

  Where husband signed a quitclaim deed transferring husband's entire interest in property to wife, the quitclaim deed did not bar the family court from equitably dividing the property because, based on the family court's findings, the married couple did not intend the quitclaim deed to alter the disposition of their marital partnership property upon their divorce; the intermediate court of appeals erred in concluding that the quitclaim deed was an enforceable separation agreement.  134 H. 29, 332 P.3d 631 (2014).

  Where married couple entered into a memorandum of understanding (MOU) stating that, upon divorce, the wife would receive seventy-five per cent of the proceeds from the sale of their home and $100,000 in lieu of alimony and court proceedings, the MOU was an enforceable marital agreement with regard to these clauses because the MOU:  (1) was not unconscionable; and (2) was entered into voluntarily.  134 H. 29, 332 P.3d 631 (2014).

  An incorporation by reference of a property settlement agreement, whether the decree specifically sets forth all the terms of the agreement, is an actual incorporation.  1 H. App. 605, 623 P.2d 893 (1981).

  To change a marital agreement after incorporating it into a consent decree of divorce, consent of both parties required or must move case from uncontested to contested calendar.  3 H. App. 51, 641 P.2d 333 (1982).

  Spousal support payable for indefinite period is subject to further court order.  6 H. App. 66, 708 P.2d 143 (1985).

  Where a conveyance to nonparties was agreed to in a valid and enforceable divorce agreement, this section authorized and required the family court to order the conveyance.  83 H. 412 (App.), 927 P.2d 420 (1996).

  Cases under Hawaii uniform parentage act involving written promises for child support are not subject to the court approval specified in this section.  87 H. 369 (App.), 956 P.2d 1301 (1998).

  Agreement in contemplation of divorce entered into eighteen years prior to the filing for divorce was enforceable in divorce case unless the agreement showed that it was not intended to apply to the divorce proceedings, the parties abandoned the agreement prior to the proceedings, or the agreement was unconscionable.  87 H. 419 (App.), 958 P.2d 541 (1998).

  Cited:  9 H. 369, 371 (1894); 23 H. 761, 764 (1917); 35 H. 382 (1940).

 

 

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