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Prenuptial / Antenuptial Agreements
Divorce A to Z – Ant & Post Agmt & their impact on the divorce process (CLICK HERE)
Legal Quick Sheet – Antenuptial Agreements
Minnesota Statute: See MN Statute 519.11 (SIGNIFICANT REVISIONS IN 2024)
Case Law: See Kremer v. Kremer, 2018 Minn. LEXIS 264 May, 2018 case (MUST READ!!) which outlines the Kinney test as well as how to invalidate under 519.11.
Procedural Fairness: An antenuptial agreement is procedurally fair if:
- there is full and fair disclosure of the current income and property of each party;
- “full and fair disclosure” means that each party has provided a reasonably accurate description of all material facts of their income and good faith estimates of the value of their property and discloses the basis for these disclosures.
- Full and fair financial disclosure CANNOT be waived
- each party has had a meaningful opportunity to consult with independent legal counsel of the party’s choosing;
- the agreement is in writing, executed in the presence of two witnesses and a notary
- Best practice is that neither of the witnesses are the notary
- Best practice is that the attorney is not a witness or the notary
- the agreement is entered into voluntarily and free of duress; and
- the agreement is entered into and executed no less than seven days before the marriage.
Substantive Fairness:
- Court determines whether all or part of the agreement is substantively unfair as to be unconscionable to either party by the agreement’s terms or as the result of drastically changed circumstances originally not foreseen when the agreement was created, such that enforcement would no longer comport with the reasonable expectations of the parties at the time that the parties executed the agreement.
- The question of substantive fairness for antenuptial agreements is: Have the parties’ intentions become so frustrated from the time of execution to the time of enforcement that it would be unconscionable to enforce the agreement? This standard is very high.
- An agreement is substantively unfair if it is unconscionable to a party based on its terms or drastically changed circumstances that were not foreseen when the agreement was executed so that enforcement of the agreement would not match the parties’ reasonable expectations at the time of the agreement.
- Just because an antenuptial agreement deviates from Minnesota law on property division or spousal maintenance does not make it unconscionable.
- Do not make the agreements so one sided that it will be deemed unconscionable at enforcement
2024 Statute Changes regarding Antenuptial & Postnuptial Agreements (there were many, here are some of the most important)
- Timeline moved from 1 day before the marriage to 7 days before the marriage.
- Full and fair disclosure was defined as “requires the parties to an antenuptial agreement to provide “a reasonably accurate description of all material facts of their income and good faith estimates of the value of their property” and disclose the basis for their financial disclosures. In other words, parties to an antenuptial agreement must provide a detailed financial net worth statement that also identifies the source documents used to obtain the information provided (e.g.,
account statements, appraisals, etc.)” - expressly allows for parties to agree to provisions regarding spousal maintenance.
Recommendations:
- Attorneys should (although not technically required) provide clients with a financial disclosure template and instructions on how to complete the same. The client should disclose their income, including all sources of income, and list all assets and debts, including the value or balance and date the information is being provided. In addition, the client should cite to the underlying documents used to complete their financial disclosure (e.g., tax returns, account statements, appraisals, loan statements, etc.) and provide the other party with the supporting documentation.
- The more time between signing the document and the actual date of marriage, the better.
- Try to list out foreseeable changes/circumstances that could happen in the future to show the parties contemplated it
- incomes may change, someone inherited money someone may leave the workforce, someone may give up salary to stay home with kids, someone may have a significant health issue in the future,
- Tread carefully when it comes to waiver of spousal maintenance. This is oftentimes challenged.
- What is someone “getting” in return for waiving spousal maintenance? Significant assets? Ability to build significant assets? Ability to grow significant income.
General Notes:
- May be amended or revoked only by a valid postnuptial contract or settlement which complies with Minn Statute 519.11 and with the laws of the state.
- If the document conveys or determines what rights each has in the other’s real property and sets forth the legal description of the real estate granted or affected by the agreement may be filed or recorded in every county where any real estate so described is situated, in the office of the county recorder for the county or in any public office authorized to receive a deed, assignment or other instrument affecting the real estate, for filing or recording.
- If something was missed in the prenup, doesn’t mean the prenup is invalid. Full disclosure doesn’t necessarily mean to disclose every single asset. See In Re Marriage of Marnach, No. A09-379.
- Common for Spousal Support to increase with length of marriage
- Common to see percentages based on duration of marriage
- Always have a second attorney review these documents
Cases to review:
Forms:
- Sworn Statements of Assets, Liabilities, and Income:Sworn-Statement-of-Assets-Liabilities-and-Income (1)
- Blank outline for list of property, debts, and assets: Blank List for Debts and Assets
Sample Prenups: (some of these were completed by our firm and some by other firms. There is no expectation that these are gold standards, but more so to get an idea of what prenups may look like and possibly get ideas for different language)
2021-04-13 Anetenuptial Agreement of Brady Meyer and Courtney Neubarth (signed)
2021-08-25 Addendum to Antenuptial Agreement (signed)
2022-04-19 Signed Antenupital Agreement
2022-05-17 Snook Antenuptial Contact (Final)
Antenuptial Agreement – FINAL 2022-03-29