Prenups, antenups, postnups oh my!
With the end of Kim Kardashian and Kris Humphries’ marriage coming just 72 days after they were married, it’s unlikely that Kris would be entitled to much, if any, of Kim’s personal wealth, but what happens in longer-lived marriages when a much wealthier spouse marries and later divorces? Who is entitled to the money the wealthier spouse brought into the marriage? The answer will likely depend on whatever the couple agreed to in a prenuptial, or antenuptial, agreement. A “prenup” is a legal agreement about how the husband and wife’s individual (non-marital) property will be divided in the event that the couple divorces. In Minnesota, the law specifically allows for prenups as well as similar agreements made after the couple has already been married, called postnuptial agreements or “postnups.”
First of all, yes, a prenup is not the most romantic thing in the world. Many couples might shy away from creating one because it seems to business-like or pessimistic about the marriage. Or, you might not be too happy about giving your future spouse the impression that you think he or she is simply out to get your money! But having a prenup is like having a will: people make wills because, as much as they’d like to think that all their relatives would peacefully and fairly divide up the person’s property after that person dies, that’s just not realistic. Similarly, it is realistic to recognize that many people who get married do eventually get divorced, and the chances that the divorce will not involve peaceful agreement as to the division of each spouse’s own, non-marital property are reasonably high–as all family lawyers can attest to! Because of this, a prenup is important where one spouse brings a much higher level of wealth to the marriage than another spouse and wants to be sure that wealth is protected if the couple ever divorces.
Minnesota law provides some basic requirements for a prenup to be enforceable. First, the husband and wife must both have made a “full and fair disclosure” of their earnings and property prior to signing the prenup. While it is probably a good idea to make that disclosure in writing, it is not strictly necessary to do so in order for the agreement to be valid.
Second, both parties must have had an opportunity to consult with an attorney of their own choice—so no springing the prenup on your future spouse 15 minutes before the wedding and saying “sign here.” However, signing the form the day before the wedding has been considered sufficient in at least one Minnesota case. Technically this means that the prenup must be executed at least 24 hours prior to the marriage.
Finally, the agreement must be what a court would consider substantively fair—the agreement includes provisions which could be reasonably foreseen, and the agreement is not oppressive to a spouse.
If you have any questions please post here or email if you have a private question. Jkohlmeyer@rokolaw.com