Antenuptial Agreements (Prenups)
Marriage is a financial union and relationship between two people. Like any financial union, it is important to define and designate your rights and obligations in that relationship and to protect your own financial interests. That is the role of the antenuptial agreement (also known as prenuptial agreement) and postnuptial agreement.
Antenuptial (Prenuptial) Agreement
An antenuptial agreement is a contract between two people who are planning to marry that sets forth the rights and liabilities of the parties in the event of divorce or death. It also can determine how each party’s premarital property should be managed during the course of the marriage, how assets and debts should be divided at the end of the marriage, and whether spousal maintenance (alimony) is paid.
In Minnesota, antenuptial agreements must be procedurally and substantively fair both at the time the agreement is entered into and at the time that the agreement is used.
An antenuptial agreement is procedurally fair if:
- there is a full and fair disclosure of the earnings and property of each party, and
- the parties have had an opportunity to consult with legal counsel of their own choice. Minn.Stat.§ 519.11, subd. 1.
The agreement must also be:
- in writing;
- executed in the presence of two witnesses; and
- acknowledged by the parties before a person authorized to administer an oath. Minn. Stat.§ 519.11, subd. 2.
The antenuptial agreement may be deemed substantively unfair if the circumstances on which the agreement was based have changed so drastically that enforcement would not comport with the reasonable expectations of the parties at the time the agreement was originally executed.
A postnuptial agreement is a contract between two people who are already married that sets forth the rights and liabilities of the parties in the event of divorce or death.
For a postnuptial agreement to be valid:
- the agreement must comply with the requirements of an antenuptial agreement, including the requirement that it be procedurally and substantively fair and equitable both at the time of its execution and at the time of its enforcement;
- both parties must be represented by separate counsel when the agreement is executed; and
- the agreement must be executed at least two (2) years prior to either party commencing an action for legal separation or dissolution.
If you are considering getting married and are looking into the question of an antenuptial agreement, or if you’re married but believe a postnuptial agreement is necessary, then it is important you speak to a qualified attorney. These types of agreements are only valid if certain procedural requirements are met. Please contact our office today for more information.