Many couples consider entering into an Antenuptial Agreement (commonly referred to as a “prenup” or a “prenuptial agreement”) before getting married. Minn. Stat. §519.11 provides the procedural requirements that must be followed.
If you are thinking about entering into an antenuptial agreement, you should consult with an attorney as far in advance of the wedding as possible. Additionally, both parties should be represented by attorneys who are experienced in both family law AND in drafting and reviewing antenuptial agreements.
In order for a Minnesota antenuptial agreement to be enforceable, the agreement must be procedurally and substantively fair.
Procedural fairness. Minn. Stat. §519.11 sets out the procedure that must be followed for a couple to enter into an enforceable antenuptial agreement. These requirements include a full disclosure of income and assets by both parties and that both parties have an opportunity to consult with an attorney. Please read Minn. Stat. §519.11 in its entirety to understand all of the procedural requirements. These requirements must be followed to ensure procedural fairness.
Substantive fairness. Whether an antenuptial agreement is substantively fair is a question of fact. The parties won’t know if their antenuptial agreement will be upheld by a court until and unless they ultimately end up divorcing. McKee-Johnson v. Johnson sets out a two-pronged test to determine whether an antenuptial agreement is enforceable:
- The agreement must be substantively fair in light of the circumstances existing at the agreement’s inception; AND
- The agreement must be substantively fair at the time of enforcement (i.e. Have circumstances changed that would make the enforcement of the agreement oppressive and unconscionable?)
Elizabeth Rosar Chermack is a lawyer who lives in Apple Valley, Minnesota, and can assist you with your Antenuptial Agreement. Call (952) 491-0390 or send an email to firstname.lastname@example.org to schedule a consultation with Liz.
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