Family Law 101: Do I Really Need a Prenuptual Agreement?

Prenuptial agreements are not just for the rich  and famous.  A prenuptial agreement allows couples to dictate how their property,  including property they brought into the marriage, will be divided in the event of death or dissolution of their marriage. Effectively, parties to a prenuptial agreement agree that they will determine the law that applies, rather than allow Minnesota law to determine each party’s rights and obligations. So, while everyone believes their marriage will last forever, the reality is that not all of them do. Also, parties may decide to be married later in life, once they have accumulated some wealth and property interests, and they may want a prenuptial agreement to ensure that their property is protected. Protecting closely held business interests is often the objective. Or, perhaps they have children from a previous marriage, and they want to ensure that the property they own going into the marriage is preserved for their children, despite their decision to marry.

Minnesota Statute § 519.11 provides authority for the creation of prenuptial and postnuptial agreements. Prenuptial agreements must be both substantively fair and procedurally fair to be enforceable, plus there are certain procedural requirements that must be followed. To create a valid and enforceable prenuptial agreement in Minnesota certain requirements must be met:

1. The agreement must contain a full and fair disclosure of the earnings and property of each party;

2. The parties must have had the opportunity to consult with legal counsel of their own choosing;

3. A written agreement must exist that is signed by both parties in the presence of two witnesses and a notary public; and

4. The written agreement must be completed before the marriage.

A postnuptial agreement is very similar to a prenuptial agreement, with some exceptions. To have a valid postnuptial agreement, both parties must be represented by attorneys. Also, there is a presumption that any postnuptial agreement is unenforceable if either party commences an action for legal separation or dissolution within two years of the date the agreement is executed.

The creation of a valid prenuptial agreement takes the fear and guesswork out of divorce.

This entry is part of a four part series on Family Law by Attorney Lori A. McLaughlin. If you have questions about a prenuptial agreement or seek a prenuptial agreement, please contact Lori.