When planning a wedding, the happy couple will think of the dress, the cake, and the officiant. Other things that should be considered, as well. What will happen in the event of a divorce? Who will get what assets? Is Aunt Tilly’s china at risk of being divided up, or worse, awarded to your spouse who never even met dear Aunt Tilly (and prefers fast food to a nice sit-down dinner). It’s important to talk about a prenuptial agreement. After all, nearly half of all marriages in the United States end in divorce.
What is a Prenuptial Agreement?
Prenuptial agreements are written contracts between two people who are about to enter into a marriage union. It is a written contract that could protect one or both of the party’s legal rights if, at some point, they divorce or one of them dies. This agreement overrides many of the default marital laws that would usually apply in the case of death or divorce.
All 50 states recognize prenuptial agreements. In the past, the law often called into question the validity of a prenuptial agreement; now, the courts recognize them, and there is no question that they are legitimate. The exception is if either party signed the contract under duress. For example, you can’t spring a prenup on your intended spouse at the last moment and threaten to cancel the wedding if they don’t sign.
Five Requirements for a Prenuptial Agreement
- The agreement must be in writing
- It must be voluntary for both parties
- The details of the agreement as well as each spouse’s earnings, assets, and debts, must be fully and fairly disclosed at the time of the execution
- The contract can’t be unconscionable. This means that no reasonable or informed person would otherwise agree to it.
- It has to be executed by both parties rather than their attorneys, as well as witnessed and notarized in the county where either spouse has real property.
What does a Prenuptial Agreement Cover?
- Each spouse’s rights to specific property owned individually or as a couple
- The division of assets and debts in the event of divorce or death
- The division of expenses during marriage
- Whether gifts and/or inheritances are marital or separate property
- Whether either spouse is entitled to alimony in the event of a divorce, and if so, how much and for how long
- If each spouse will receive death benefits from the other’s insurance policy.
What it Does Not Cover
Child custody and/or visitation agreements. The courts will not decide what the fate of a child will be at some arbitrary point in the future. They can’t predict now what will be in the child’s best interest in the future.
Are You Already Married?
No problem! In Minnesota, postnuptial agreements are also recognized. These are like prenuptial agreements, except they are entered into after you are already married.
If you are getting married and would like to learn more about prenuptial agreements, or if you are already married and need a postnuptial agreement, contact us for a free consultation.