Prenup or Postnup – Rules and Benefits

signing a prenupGetting married is an exciting time for both parties.  Neither party wants to imagine that divorce is a possibility while planning a wedding.  However, drafting and executing a prenuptial agreement is essentially thinking about what the parties would want in the event that the marriage falls apart in the future.  Similarly, post-nuptial agreements are agreements that spouses can enter into during their marriage to make provisions for their income and assets in the event the marriage fails in the future.  There are important requirements that you need to be aware of if you and your spouse or partner are considering either of these documents.

First, for both pre-nuptial and post-nuptial agreements, both of the spouses must fully and fairly disclose all of their assets.  This is true even if the agreement does not deal with each of the specific assets.  Another requirement is that both parties must have the opportunity to consult independent legal counsel before signing.  Finally, each spouse must enter into the agreement voluntarily and the agreement cannot be grossly unfair.  If the parties later divorce and either party can prove that one of these requirements is not met, then the agreement may be set aside and the parties will proceed during divorce as if there was no agreement at all.

One important thing to note is that neither pre-nuptial agreements or post-nuptial agreements can determine who gets custody of the parties’ children.  Custody determinations will always be made based on what is in the best interest of the children, and although parties are free to make an agreement during the divorce as to how custody should work, public policy is against having a custody agreement inside of a contract.

Another important issue is that a post-nuptial agreement cannot be entered into when one or both parties is contemplating imminent divorce.  The law in Minnesota provides that any post-nuptial agreement signed within two years of filing for divorce is automatically suspect, and the person who filed the divorce and seeks to enforce the post-nuptial agreement has the burden to prove the document is fair.  There is no such two-year requirement for pre-nuptial agreements, so if the marriage falls apart quickly, the pre-nuptial agreement will still be enforceable.

If you are contemplating a pre-nup or a post-nup, let us help you understand the benefits and rules of these documents.  Call today at 651-413-9568 for a consultation.