While Minnesota law generally governs how assets are divided in a dissolution proceeding, you and your spouse or spouse- to- be are unique individuals and may want to divide your assets differently. If you and your partner decide you want an asset division unique to you, KMH will work with you to ensure that your antenuptial (entered into before the marriage) or postnuptial (entered into after the marriage) agreement conveys your intent in a legally enforceable document that fully comports with Minnesota law.
Some clients seek antenuptial or postnuptial to designate assets as non-marital property that are already deemed non-marital property under Minnesota law. For example, if a spouse owned property or received an inheritance prior to the marriage, those assets are deemed non-marital property under Minnesota law (as long as they remain segregated from marital assets) and do not require an antenuptial or postnuptial agreement for further protection. KMH will work with you to determine the marital or non-marital status of your assets and help you ensure that they retain the status you intend and desire.
While antenuptial and postnuptial agreements permit spouses and spouses-to-be to agree to divide their assets or make decisions regarding spousal maintenance, agreements with respect to child custody, child support or parenting agreements may not be enforceable, depending upon whether a court finds them to be in a child’s best interest. To determine whether such agreements are enforceable, a court will want to make sure that these issues are decided in a way that is in the child’s best interest.
Antenuptial and postnuptial agreements are contracts and thus must meet all the legal requirements of a valid contract. In addition, the agreements must have been procedurally fair when they were signed. For example, the spouse who is giving up rights to property to which they would otherwise be entitled must have had sufficient time to review the agreement and consult an attorney. It addition, the agreement must be substantively fair at both the time it was signed and at the time a party seeks to enforce it. If circumstances have changed between the signing of the agreement and the time a party seeks to enforce it, such that the agreement seemed fair when signed but later seems unjust to one party, a court will not enforce it. Because circumstances are unpredictable and may change at any time, it’s impossible to guarantee that antenuptial and postnuptial agreements will be completely enforceable. If a court finds any part of the agreement to be unfair at the time a party seeks to enforce it, the court will not enforce the provision it finds to be unfair.
In addition to meeting the requirements that any agreement has to meet to be a legally enforceable contract, and the requirement that it be fair, there are also requirements specific to antenuptial and postnuptial agreements. For example, an antenuptial agreement to be enforceable, it must have been made between two people of legal age in contemplation of marriage. There must have been a full and fair disclosure of each spouse’s earnings and property and each spouse must have had an opportunity to consult with their own attorney. In addition, the agreement must be in writing, signed before two witnesses for each spouse (who must also sign the agreement), the signatures must be notarized and it must be signed no later than midnight of the day before the wedding. For a postnuptial agreement to be enforceable, the spouses must have each been represented by separate legal counsel. An opportunity to consult with legal counsel is not enough.