There is nothing romantic about a prenuptial agreement (prenup). Yet, for many engaged couples in Minnesota, preparing for the possibility of marital dissolution is simply being realistic. But, what is the risk a prenup will be ruled unenforceable by a court? Is it possible to prepare an unbreakable prenup?
In Minnesota, a prenup will be enforceable if it satisfies certain standards of fairness. There are two basic types of fairness courts will consider: procedural fairness, which refers to the circumstances under which the agreement was entered into; and substantive fairness, which refers to the actual terms of the agreement.
In 1979, the Minnesota Legislature passed a law setting out the procedural fairness requirements for prenuptial agreements. Under this statute, each party must make a complete disclosure of assets to the other. Each party must also have the opportunity to consult an attorney of their choice before signing the agreement. It must be signed in the presence of two witnesses and a notary.
The substantive fairness requirements are not found in the statute. These requirements are found in case law from the Minnesota Supreme Court and Court of Appeals.
These cases make clear that to be enforceable, the terms of a prenuptial agreement must be fair to both parties not only at the time the agreement was entered into, but also at the time of the divorce proceedings. Thus, an agreement that was fair and reasonable when the couple married may not be fair and reasonable years later, if circumstances have changed so much that enforcing the agreement would be oppressive and unconscionable.
In light of these substantive fairness requirements, it is never possible to absolutely guarantee that a prenuptial agreement will hold up in court years later. Nonetheless, an experienced family law attorney can help a party draft a strong agreement designed to withstand foreseeable challenges. The attorney can also advise a client how changes in circumstances might make the agreement unenforceable.
Source: MN.gov, “Minn. Stat. § 519.11,” accessed on March 26, 2016