Prenuptial Agreements

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Minnesota law recognizes the validity of a prenuptial agreement, so long as the agreement is executed in a procedurally fair way, and is substantively fair at the time of execution and enforcement. Prenuptial agreements allow the parties to a marriage "re-write" the laws of probate and marital dissolution.

Did you sign a prenuptial agreement and it felt a bit rushed? Did you not have time to adequately read the terms of the agreement? Were you coerced into signing the agreement?

While “rushed” may not be the best claim to void a prenup, there are a number of legal bases to do so. For instance, being coerced into signing the agreement can void the contact. So can signing under duress. Failure to fully disclose the agreement to you can also lead to invalidity of the agreement.

A prenup in Minnesota may also be deemed invalid if any of the following are true:

  • You lacked the mental capacity to sign the prenup – If you can prove that you lacked mental capacity to understand what you were signing, it is possible to invalidate it.
  • The paperwork was never executed to begin with – As with any legal document, a prenuptial agreement can only be enforced if the paperwork was filed and does not contain careless errors. If the initial agreement was not drafted well, then it could be invalidated.
  • You lacked legal representation when you signed the agreement – It is important to have the representation of a qualified attorney to ensure the terms of the agreement are understood.
  • The provisions are ridiculous – If the provisions are lopsided ,or simply ridiculous, it may be thrown out. For example, a prenup that says “no child support is to be paid in the case of a divorce” it is most likely going to be rejected.

For the best opportunity to enforce a prenuptial agreement, both parties should have their own attorney. The prenup must be written, executed without coercion, and signed after full disclosure of both parties’ assets, debts and income.

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.