Minnesota Prenuptial Agreements
A prenuptial agreement is a contract that is signed by a couple before marriage. In Minnesota, they are known as antenuptial agreements. Antenuptial agreements allow couples to address division of property issues in the unfortunate circumstances of a future divorce. Minnesota has several requirements to insure that an antenuptial agreement is fair to both parties.
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Antenuptial Agreements
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Because half of all marriages in the United States today fail, couples have chosen to protect their separate assets by signing an antenuptial agreement before a marriage. An antenuptial agreement sets forth how property is to be divided and whether either spouse will be entitled to alimony or spousal support in case of a divorce. While discussing an antenuptial agreement with a soon-to-be spouse is sometimes considered unromantic in the face of an upcoming wedding, antenuptial agreements can save spouses a lot of money and help them avoid the emotional pain of a long court battle during a divorce.
Common Provisions
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Antenuptial agreements should first address each spouse's separate property. This insures that the owning spouse will retain separate property without interference from the other. Separate property will include anything owned individually before the marriage and any gifts or inheritances received by only one spouse during the marriage.
Additionally, the antenuptial agreement should set forth how any debts incurred by either spouse before the marriage, and still outstanding upon divorce, are to be repaid. Also, responsibility for any marital debts not yet incurred should be defined.
Lastly, while the property may not yet exist, define what percentage of the marital property each spouse will be entitled to upon divorce.
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Fairness
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Under Minnesota statute section 519.11, an antenuptial agreement is only valid if it is fair to both parties. The statute lists specific fairness requirements. First, both parties must be of legal age, at least 18 years old. Next, both parties must be permitted to seek advice from their own attorney. This is especially important if one party is significantly financially weaker. When the financially weaker spouse does not have an attorney, courts assume that he or she may have been pressured into signing an agreement. Lastly, both parties must fully disclose their income, monetary assets and property, as well as whether a significant change in financial circumstances could occur.
Valid Execution
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Minnesota also requires that a specific procedure be followed when an antenuptial agreement is signed. The agreement must be in writing. Even where every other requirement is satisfied, an oral agreement is invalid and unenforceable. When the written agreement is signed, both parties must be present. Two witnesses must be present when the agreement is signed, and the statute recommends that each party have his or her own witness. Finally, a notary public licensed in Minnesota must notarize the agreement. According to Minnesota case law, Pollock-Halvarson v. McGuire, the notary cannot also be serving as one party's witness but must be an impartial third party.
Enforcement
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When all of the statute's requirements are satisfied, a Minnesota court will enforce an antenuptial agreement upon divorce. Because a couple's financial circumstances are always subject to change, it is important to anticipate those possible changes. For example, if the couple wants to have children and one spouse will be serving as a homemaker, this could change that spouse's income. Also, if one spouse may change jobs causing a substantial increase or decrease in income, that situation should also be addressed. In the end, if a couple's circumstances have changed so much since the antenuptial agreement was signed, a court may not enforce the agreement. When making that determination, a court must examine the changes and decide if enforcing the agreement would be "unconscionably unfair."
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References
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Comments
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Wow this is very important to those who thinks they just want the hose riders, I really agree with the information that is written here South Africans also should be honest and look at other country how they run fairness in between the two parties. Do you agree please comment.
