An increasing number of couples are choosing to enter into prenuptial or antenuptial agreements prior to getting married. An antenuptial agreement is a contract between prospective spouses that is entered into before the date of the wedding that allows them to determine or limit the rights each of them will have in the other’s property and income in the event of the death of one of them or upon divorce. It allows the parties to essentially re-define the rights and property dispositions provided by Minnesota law upon the termination of marriage due to divorce or death. There are multiple reasons why couples might want to enter into an antenuptial agreement, but the following are the most common reasons:
Unequal Financial Circumstances of the Parties. Couples commonly enter into an antenuptial agreement because one spouse may have much higher net worth and income compared to the other spouse. An antenuptial agreement allows the wealthier spouse to limit the property division and alimony payments to the less well-off spouse upon divorce and to limit inheritance by the less well-off spouse upon death. It can also be used to protect the less well-off spouse and can be used to protect one spouse from the debt of the other spouse.
Second Marriages and Blended Families. Couples also commonly enter into an antenuptial agreement when it is a second marriage and a blended family situation. An antenuptial agreement in these circumstances allows the couple to protect their assets for their children from a previous relationship.
Family Businesses and Other Family Assets. Another common reason that couples may enter into an antenuptial agreement is to protect a family business or other family asset, such as a family cabin.
Whatever the reason for entering into an antenuptial agreement, you must follow the procedural requirements for a valid antenuptial agreement under Minnesota Law (“procedural fairness”). The procedural requirements for a valid antenuptial agreement are as follows:
- The agreement must be in writing and between adults;
- The agreement must be executed prior to the date of marriage;
- The parties must fully and fairly disclose their assets, earnings and debts;
- Each party must have the opportunity to consult with an attorney of their choice; and
- The agreement must be witnessed by two people and notarized.
Although it is not required that each party have their own attorney (only that they have the opportunity to consult with an attorney of their own choosing), it is highly recommended that each party at least meet and consult with their own attorney regarding the antenuptial agreement.
In addition to meeting the procedural requirements, the antenuptial agreement must also be substantively fair at both the time of the execution of the agreement and at time of the enforcement of the agreement (“substantive fairness”). So, for example, if enforcement of the antenuptial agreement at the time of divorce would mean that one spouse is destitute and would have to apply for public assistance, a Court is unlikely to enforce the antenuptial agreement. Because of this, it is impossible to be absolutely certain that a Court will enforce the antenuptial agreement at the time of divorce or death, but it still provides a lot of protection in most situations.
Because of the procedural and substantive fairness requirements, you can greatly increase the chances that a prenuptial agreement will be enforced by seeking the advice and assistance of an attorney experienced with antenuptial agreements. To speak with an attorney experienced with antenuptial agreements, contact Tentinger Law Firm at 952-953-3330 or use our quick contact form.