Podcast: Prenuptial Agreements & Postnuptial Agreements: Purpose, Content & Enforceability In Minnesota

In this edition of The Family Law Show, Jason Brown summarizes the law, purpose and contents of nuptials- whether pre, ante, or post.

The law in Minnesota is clear: nuptials must be both procedurally and substantively fair in order to be enforceable. But what does that mean?

Topics addressed in this podcast include: typical clients who seek nuptials, the difference between a prenuptial agreement (or antenuptial agreement) and a postnuptial agreement, the specific criteria the court will use in scrutinizing nuptials and a general framework for an effective prenuptial, or postnuptial, agreement.

Run Time: 15:16

 

Prenuptials Right For Me? Recession (And Perhaps Tiger) Changing The Mindset

We were browsing the California Divorce Blawg yesterday and fellow family blogger John E. Harding highlighted a recent article by Laura Petrecca in USA Today on prenuptial agreements.

At least once a week our firm is contacted by a soon-to-be bride or groom, who have taken time away from cake, dress and music selections to ask that age-old question: what if?

Here’s what Petrecca reports:

Specific data about the often-complex contracts don’t exist, mainly because prenups fall into the area between family law and estate planning, so there is no single trade group continually tracking trends, says Steve Hartnett, associate director of education for the American Academy of Estate Planning Attorneys.

But a number of factors are fueling the prenup bump. At a broad level, they have gained more acceptance as a financial-planning tool.

Personal-finance expert Suze Orman encourages every engaged couple to get one to protect their current and future assets as well as to shield themselves in case a mate secretly runs up massive credit card debt (which could damage both partners’ credit scores).

Elizabeth Gilbert, author of the blockbuster tome Eat Pray Love, recently made the case in her new best seller, Committed, for why she and her husband got a prenup.

“Marriage is not just a private love story but also a social and economical contract of the strictest order,” she says. “If it weren’t, there wouldn’t be thousands of municipal, state and federal laws pertaining to our matrimonial union.”

More than one-third of adults — 36% — said prenups make smart financial sense, according to the Harris survey. When Harris asked that same question in 2002, 28% said so.

In a recession, people want to hang onto the assets they have, so they increasingly look to these pacts as an option, says Robert Nachshin, co-author of the prenup guide I Do, You Do … But Just Sign Here.

Catch Petrecca’s full article here. Find Minnesota’s statutes on prenuptial agreements here. The Minnesota State Bar Association has also published an easy-to-understand summary on prenups. Find it here.

Key Points:

  • Prenuptial agreements are a mechanism for parties to re-write the statutes that govern divorce to conform to their own expectations.
  • Even if a prenuptial agreement has been executed, the party to a divorce may seek to challenge its contents.
  • A prenuptial agreement must meet both a “substantive” and “procedural” fairness test to be enforced under Minnesota law.
  • Minnesota law requires a prenuptial agreement to be in writing, signed by two witnesses and notarized to be enforceable.
  • The parties to a prenuptial agreement must disclose all of their income, assets and liabilties as party of the agreement.
  • The parties to a prenuptial agreement do not need to be represented by lawyer (but should), but the parties to a postnuptial agreement (a prenuptial agreement executed after marriage) must be represented by counsel under Minnesota law.

When I meet with a couple who want to have a prenuptial agreement in place, we try to have a little fun. I mean, what else could be more enjoyable during the happiest time of your life than thinking about the worst possible scenario?

How in the heck do you raise the issue of a prenup with the love of your life? For the true romantics out there, and with a little help from Relationship Online Information, here are a few ways to surprise the one you cherish:

  • Does your girlfriend love the movies? If so, then organize a movie-night at home complete with DVDs, popcorn, candy, soda and a prenup.
  • Slip a prenup between the pages of a book your fiance is currently reading, into her lunchbox or even her handbag or purse if you get the chance. Just think of the surprise she’ll get next time she goes to pay for something, opens her lunch at work or starts reading her novel.
  • You could mail your fiance a prenup. This is almost a lost art form these days, taken over as they are by emails and instant messages. What a surprise he’ll get if you write a heartfelt prenup on elegant stationery, add a touch of your perfume and drop it in the mail. Different, unique and definitely a special way of expressing your passion for him!

If you’ve got another idea to pass along, such as a tastefully packaged gift certificate to a law firm for Christmas, let me know.

Prenuptial Agreements In Minnesota

Minnesota law recognizes the right of the parties to a marriage to rewrite the laws concerning marital dissolution and, instead, contract concerning their rights and obligations should their marriage fail. This can be done in one of two ways.  If the parties wish to enter into an agreement prior to their marriage, they will execute a prenuptial agreement.  If the parties wish to enter into such an agreement after the date of marriage, they will execute a postnuptial agreement.  These two documents are treated very similarly under the law, so they will be discussed collectively here.  However, it is critically important to note that a postnuptial agreement is not valid unless both parties to the agreement are represented by an attorney. The involvement of a lawyer is strongly encouraged when drafting a prenuptial agreement, but it is not absolutely necessary under Minnesota law.

Basic contract principles of offer, acceptance and consideration apply to these agreements.  There must be a “meeting of the minds ” in terms of the meaning of the contract a couple enters into.  Additionally, the law requires that there be a complete disclosure of all income, assets and liabilities of each party on the date that the agreement is executed.

Prenuptial and postnuptial agreements typically involve the division of marital assets, the amount and duration of a potential award of spousal maintenance and the obligation of each party in relation to the finances of the household during the marriage.  Some agreements are drafted to protect or preserve the inheritance of a child when a second marriage is involved.

Minnesota law says that any prenuptial or postnuptial agreement must be substantively and procedurally fair.  A party seeking to undo the contract after the fact faces the burden of proving that the agreement was not executed in a fair manner or that its terms are not fair in and of themselves.