How the Prenuptial Agreement Process Works

A woman holds a pen to sign a prenuptial agreement. A man's hand points to where she should sign.

Planning for a wedding is both joyful and stressful, with many important details like finding the perfect venue, picking out the right dress, and sampling a wide range of cakes. The wedding is only the beginning, though. A marriage or civil union requires planning as well. A prenuptial agreement, also known as an antenuptial agreement or contract, or simply a “prenup,” can help people address a wide range of issues that could come up during the marriage. People often think of a prenup merely as a plan for divorce before the marriage even begins. While this is one function that a prenup can serve, it can also help a couple with their estate planning and serve as a “road map” for their marriage.

Louise Livesay has many years of experience preparing prenuptial agreements that help couples find ways to deal with complicated or difficult issues ahead of time. She also offers couples a workbook to help them as they plan for their future called Designing Our Future Together. It is for couples who are moving in together, getting married, blending families, or looking for a relationship refresh or marital mediation. It brings in the important self-reflection focus of Our Family in Two Homes and Our Family in a Few Homes, but with a positive, future-focused tone, and includes a comprehensive list of things to consider when starting (or continuing) a romantic relationship.

What Is a Prenuptial Agreement?

A prenuptial agreement is a contract between two people who intend to get married and want to plan for various issues that may come up during the marriage. By definition, they must enter into a prenuptial agreement before they get married. An agreement made after the marriage is known as a postnuptial agreement, or “postnup.” Postnups are subject to slightly different requirements under Minnesota law.

Why Do People Get Prenuptial Agreements?

Couples decide to get prenups for numerous reasons. Some of these reasons, such as trying to minimize conflict for a possible divorce in the future by revolving anticipated issues in a divorce, are not very romantic, and not something people want to think about when they are excited about getting married. Prenups can also help couples plan for certain events that may occur during the marriage.

The only issues that a prenup cannot cover are child custody and child support. During a divorce, the parties may reach an agreement on those issues, but a court must find that their agreement serves the child’s best interests at that point in time. A prenup cannot determine in advance what will be best for a child.

Reasons that people get prenups may include:

  • Planning for the division of property and spousal maintenance in the event of a divorce
  • Determining what will happen to certain assets, such as the marital residence or life insurance benefits, should one spouse die
  • Identifying assets that will remain one spouse’s separate property or become marital property during the marriage
  • Dividing expenses during the marriage
  • Preserving part of a spouse’s estate for children born to a previous marriage
  • Shielding one spouse from the other spouse’s debt
  • If one spouse owns a business, confirming that business assets and debts will remain separate from the marriage

What Are the Requirements for a Prenuptial Agreement in Minnesota?

Minnesota law sets several requirements for prenuptial agreements:

  • The prenup must be in writing.
  • Both parties must voluntarily participate in negotiating and signing the prenup.
  • Prior to signing the prenup, both parties must fully disclose their assets, debts, income, and other financial matters to one another.
  • The prenup must not contain any unconscionable provisions, meaning anything that is so manifestly unfair towards one party that no reasonable person would agree to it voluntarily.
  • Both parties must have an opportunity to consult with a lawyer of their choice regarding the prenup.
  • Both parties must sign the prenup themselves, not through their attorneys.
  • The signatures must have two witnesses, who must also sign the document.
  • The parties’ signatures must be notarized.

What Might Make a Prenuptial Agreement Invalid?

In the event that the parties to a prenup get divorced, either spouse may object to enforcing all or part of the prenup on certain grounds. Other interested parties might be able to object to a prenup after the death of a spouse. Careful preparation and drafting are vitally important to make certain that a prenup will be enforceable.

A court will look at whether the prenup is fair. This includes both “procedural fairness,” which looks at what the letter of state law requires, and “substantive fairness,” which takes a more subjective look at the agreement. Examples of procedural unfairness in a prenup include the following:

  • The document does not meet Minnesota’s signature requirements, such as not being notarized or signed by two witnesses.
  • One or both parties failed to make a full financial disclosure before signing.
  • One party was not given the opportunity to consult with their own attorney.

Courts in Minnesota presume that a prenup is procedurally fair. The party challenging the prenup has the burden of proving that it is not.

Substantive unfairness can be harder to prove because it requires a look at the total circumstances of the prenup. A provision that seems perfectly fair and reasonable for one couple might be unconscionable for a couple with different circumstances. A finding that a prenup is substantively unfair often involves evidence of duress or coercion. It may also involve various types of fraud or situations in which one party to the prenup takes advantage of the other party. As with procedural fairness, the person challenging the prenup has the burden of proving that the agreement is substantively unfair.

Louise Livesay’s experience in preparing prenuptial agreements has helped many couples deal with complicated issues ahead of time. If you are considering a prenuptial agreement contact Louise at (651) 964-3887 and ask for the couple's workbook Designing Our Future Together. A prenuptial agreement needs to be planned ahead and not a last minute matter so that it is done properly and each person has time to work with their attorney so that it is considered valid. Talk to Louise about doing a prenuptial agreement as part of a Collaborative Process.

For more than two decades, family lawyer Louise Livesay has helped families in the Twin Cities area resolve disputes and transform their relationships through Minnesota’s family laws. If you have questions about divorce mediation, Collaborative Law, or other family law matters, please contact us today online.

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