Getting married is an exciting time. Marriage is a new chapter of life for both spouses, and the parties will need to come up with a plan as to how they plan to build their new life together. Although no one wants to think about the end of a marriage before it even begins, a prenuptial agreement can be an essential component of that plan. Before moving forward with a prenuptial agreement, it is important to understand the basic requirements for a valid prenuptial agreement.
First, a prenuptial agreement must be in writing. An oral “contract” or agreement will not be held to be enforceable as a prenuptial agreement. The parties must put down in writing the details of their agreement.
Next, the prenuptial agreement must be signed by both parties, and those signatures must be notarized. In other words, simply writing down the agreement will not be enough unless and until both of the spouses have also signed the agreement. This is true even when the prenuptial agreement, for example, only addresses a property right that will only impact one of the spouses (e.g. where the wife agrees that the family business that the husband works for is separate property and she will receive none of its value in the divorce).
Third, both parties must have the opportunity to consult an attorney before signing. Note that it is not necessary that both parties actually hire their own attorney, although that is highly advisable. Instead, the parties must simply both have the chance to do so before signing the agreement.
Finally, the law requires that both parties make a full disclosure of all of their assets and all of their debts. If the court later finds out that one party was dishonest regarding the required disclosures, the court could find that part of all of the prenuptial agreement is not enforceable. If that occurs, the court will use Minnesota law to divide the assets and debts and to set spousal maintenance, if applicable.
Spouses also need to keep in mind that there are some issues that cannot be included in a prenuptial agreement. The most common issue is that of child custody. The court will not enforce a prenup agreement regarding child custody, as the court will always make decisions regarding the children based on what is in their best interest at the time of the hearing.
We have extensive experience with crafting enforceable prenuptial agreements for our clients. Call us today at (651) 371-9117 to talk about your case.