We Are Engaged (Don’t Forget a Prenup)!

While most people think of high-profile celebrities and the ultra-wealthy when prenups come to mind, these agreements aren’t just limited to the rich and famous. Anyone who has identifiable cash assets, owns a home or business, or simply wants to outline expectations for the marriage should consider entering into one. However, it’s essential not to leave a prenup until the last minute — doing so could leave the document vulnerable to a potential dispute in the event of divorce.

Is a Prenup Necessary?

If you’re planning on tying the knot, you might be wondering, “is a prenup necessary?” Prenuptial agreements are never mandatory, but they’re a good idea in many instances. For example, if there is a disparity in wealth between you and your soon-to-be spouse, or you own a company, a prenup can help safeguard your assets. It can also be used in connection with estate planning and help to ensure children from a previous marriage are provided for when you pass away.

A prenup can also decide how your property is divided in advance of making those decisions at the time of divorce. This can save a substantial amount of time and money that would otherwise be spent on litigation in the courtroom. You can also specify what should be classified as marital property versus non-marital or separate property — and determine ownership of any pets you shared with your spouse.

Significantly, the process of entering into a prenup can encourage couples to have open and honest conversations about their finances. Since full financial disclosure is required, soon-to-be spouses can get a better understanding of each other’s financial situation. They can also be sure to communicate their financial goals and expectations for the marriage.

Minnesota Prenup Requirements

Minnesota prenups — also referred to as antenuptial agreements — are governed both by statute and case law. There are many things that can be addressed in a prenup, including property division, alimony, inheritances, gifts, and insurance policy benefits. But there are also certain provisions that cannot be included by law, such as terms that would be in violation of public policy, child custody issues, and child support matters.

In order to have a valid Minnesota prenuptial agreement, it must meet the following requirements:

• The agreement must be in writing
• The agreement must be signed voluntarily by both parties
• The prenup must be signed by two witnesses
• The document must be notarized
• All assets of each party must have been disclosed
• Each party must have had a reasonable opportunity to seek legal counsel
• If the prenup addresses real estate, it may be filed in the county where the real property is located

Critically, the prenup must also be fair to both parties at the time of signing and enforcement. A prenuptial agreement that is too one-sided may be deemed unconscionable. These types of prenups are usually rendered unenforceable by a judge.

When Should You Draft a Prenup?

One of the most important considerations in drafting a prenup is ensuring you allow for enough time to complete it. A tremendous amount of pressure can be placed on a future spouse if they are handed a prenup close to the wedding date. Notably, a prenuptial agreement is not something that should be rushed into. You will need to take time to gather your financial information and discuss your financial goals with your partner. Once you have done so, a prenup can be drafted — and negotiated.

You and your soon-to-be spouse should begin discussing a prenup as early as possible — this will give you ample time to consult with your own attorneys, make changes as necessary, and help to ensure the document won’t be challenged. Although a prenup can be signed at any point up to the date of marriage, a judge might consider whether one signed too close to the wedding was executed under duress or coercion. If the court believes that undue pressure was involved in procuring the prenup, it could be invalidated. Whenever possible, it’s best to avoid any appearance of duress or coercion by drafting a prenup and reviewing it with your legal counsel well in advance of the wedding.

The act of doing a prenup can put stress on the relationship at a joyful time of the relationship that you are planning your marriage because the “what ifs” of divorce need to be discussed. You can work with two Collaborative attorneys, one representing each of you, to assist you in drafting your agreement. The focus will be on helping you have productive conversations that address your concerns and goals as a couple rather than having divisive and painful conversations. Who you work with makes a difference in how the experience of doing the prenup goes.

Contact an Experienced Minnesota Divorce and Family Law Attorney

If you are planning to get married, it’s vital to consider entering into a prenup with your partner. A knowledgeable divorce and family law attorney who handles prenuptial agreements can provide you with the legal counsel you need and advise you regarding your rights. Divorce and family law attorney Louise Livesay has been committed to helping clients in the Twin Cities area with a wide variety of matrimonial matters for over two decades. We welcome you to contact us online for a consultation or by calling 651-294-2338.