Premarital Agreements
A premarital agreement, or prenuptial agreement, is a legal contract couples sign before marriage stating how they want to divide their money, debts, property, and assets they owned prior to and obtained during the marriage should they ever divorce.
COMMON QUESTIONS ABOUT PREMARITAL AGREEMENTS
Is a prenup the same thing as a prenuptial agreement?
Yes. These terms refer to the same legal process. Although the thought of planning for a divorce is far from romantic, nearly 50% of marriages fail. A prenuptial agreement specifies who gets what from the marriage, so a divorce is easier and less expensive. This type of agreement is not just for rich people. It is a financial plan for any couple of any financial means to protect and preserve all that each spouse had before marriage as well as what they built together during the marriage. They change the way the law says those assets and debts should be divided to try to keep a divorce out of court.
A prenuptial agreement cannot address custody, parenting time and/or child support if there is a divorce.
The Minnesota legislature changed the laws that involve prenuptial agreements in 2023. It is best to consult with a family law attorney in the area where a Minnesota divorce is going to take place to see how the legislative changes affect your agreement if it was signed prior to August 1, 2023.
What is involved with creating a prenuptial agreement?
Minnesota Statute Section 519.11 allows two people of legal age to enter into a valid and legally enforceable prenuptial agreement to divide marital and non-marital assets, spousal maintenance and estate planning upon the death of one or both spouses during the marriage so long as their agreement is procedurally and substantively fair. To be procedurally fair, it must be signed personally by each soon-to-be spouse so that:
(1) there is full and fair disclosure of the current income and property of each party;
(2) each party has had a meaningful opportunity to consult with independent legal counsel of the party’s choosing;
(3) the agreement is in writing, executed in the presence of two witnesses, and acknowledged by the parties before a person authorized to administer an oath under the laws of this state;
(4) the agreement is entered into voluntarily and free of duress; and
(5) the agreement is entered into and executed no less than seven days before the marriage.
The same law then says a prenuptial agreement is substantially fair when:
(a) In determining if an agreement under this section is substantively fair, the court shall consider whether all or part of the agreement is substantively unfair as to be unconscionable to a party either by the agreement’s terms or as the result of drastically changed circumstances originally not foreseen when the agreement was created, such that enforcement would no longer comport with the reasonable expectations of the parties at the time that the parties executed the agreement.
(b) The agreement need not approximate a division of marital or nonmarital property, or an award of spousal maintenance, consistent with statutory law regarding property division or spousal maintenance. A deviation from statutory standards does not in itself make an agreement unconscionable.
A valid prenuptial agreement requires each party take the time to truthfully disclose the details of their income, assets and debts so they know what each has and to plan in writing, with or without each having their own attorney to offer legal guidance and advice, how they intend to divide all that they individually or jointly own should there be a divorce.
Does a premarital agreement expire?
Prenuptial agreements do not have an expiration date. They last as long as the marriage.
Minnesota law allows a couple to sign a postnuptial agreement to plan, while still married, how they want to divide assets and debts in a divorce. The law is very strict as to when and how a couple can use this sort of planning. Both parties must hire their own attorney to draft a postnuptial agreement otherwise it is void. Plus, the postnuptial agreement’s validity will be questioned if a divorce begins within two years of the couple signing it. Premarital and postnuptial agreements are contracts so they must be drafted in very specific ways to have the parties’ financial plans be legally recognized in court.