It is not uncommon for couples who are contemplating marriage to enter into an Antenuptial Agreement (commonly referred to as a “prenup” or a “prenuptial agreement”).
Minnesota law allows parties to enter into an antenuptial agreement.
If a party is considering entering into an antenuptial agreement, the parties should each 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 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 provides requirements that must be met in order for an antenuptial agreement to be enforceable. 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. Minn. Stat. §519.11 contains additional requirements to those listed in the previous sentence, to ensure procedural fairness.
Substantive fairness. 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 Family Law attorney who lives in Apple Valley, Minnesota, and can assist you with your Antenuptial Agreement. Call (952) 491-0390 or send an email to liz@chermacklaw.com to schedule a consultation with Liz.
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