Antenuptial Agreements

Minneapolis Antenuptial/Postnuptial Agreements LAWYER

Minnesota Law allow parties to enter into a contract prior to marriage, governing their rights upon divorce and division of property upon death, called an antenuptial agreement.  It similarly allows for contracts governing property division, maintenance and other rights upon divorce, and property division upon death, which when drafted and signed after marriage is called a postnuptial agreement.  Both types of contracts have very specific rules that must be followed, or the contract may not be enforced upon divorce or death.  Importantly, Minnesota law allows challenges to such contracts if either the proper procedure was not followed during the creation of the contract, if the agreement is found to be unfair at the time it was created, and importantly, if the contract is found to be unfair at the time of the divorce.

Brian has significant experience in drafting both antenuptial and postnuptial agreement.  His experience in successfully challenging such agreements, and in defending them, aids in his drafting of agreements designed to withstand future challenge.  Key to drafting such agreements is planning.  Especially as to antenuptial agreements, you need to contact counsel and begin the process of creating an agreement well in advance of your marriage, with a goal of trying to have the agreement executed at least a month before your planned marriage. 

Contact Brian today to discuss whether or not an antenuptial or postnuptial agreement is right for you, and what is needed to begin the process.  A more detailed discussion of these agreements is found below.

Antenuptial/Postnuptial Agreements 

An antenuptial agreement (also known as a prenuptial agreement or a “pre-nup”), if properly drafted, is a legally enforceable contract governing rights you will have, once married, upon a future divorce or the death of your spouse.  Many times, these agreements are challenged upon the commencement of a marriage dissolution action, and many times the spouse seeking enforcement of the agreement seeks a fast determination by the court that the agreement is enforceable.  The statutory law governing antenuptial agreements and postnuptial agreements (contracts governing rights of spouses upon divorce or death drafted after the marriage) is specifically governed by a set of rules under Minnesota law that must be followed.

Brian L. Sobol is extremely experienced in drafting antenuptial agreements and has both successfully challenged agreements drafted by others as well as argued in support of the enforcement of properly drafted agreements.  He is well familiar with the leading case on the enforceability of such agreements, which was decided over thirty years ago, with his former law firm representing one of the parties.  In that case, it was held that to be enforceable, an antenuptial agreement must generally pass three tests: 1) whether it was procedurally fair when drafted, 2) whether it was substantively fair when drafted, and 3) whether it remains substantively fair at the time of enforcement.  If all three prongs are met, the agreement will be enforced.  If there is a deficiency in the first prong the test (procedural fairness) the agreement will be invalidated.  If there are defects in the second or third prong of the test, part or all of the agreement may be subject to invalidation. 

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Procedural Fairness

To be deemed procedurally fair there must be: a) a full and fair disclosure of the earnings and property of each party, and b) each party must have had the opportunity to consult with legal counsel of his or her own choice.

In considering procedural fairness, the court will look at the circumstances under which the agreement was executed.  Did the party requesting the execution of an antenuptial agreement discuss the need or desire for an agreement months before the marriage, or did he/she hand his/her fiancé a cocktail napkin waiving rights to property just shortly before the marriage?  Was the other party afforded the opportunity to consult with an attorney? 

Brian attempts to avoid issues of procedural fairness when participating in the drafting of antenuptial agreements, by working, when possible, to complete all negotiations and to have the document executed, when possible, several weeks (and preferably at least a month) before the marriage. 

Substantive Fairness at the Time of Execution 

The second factor the court will evaluate in determining whether an antenuptial agreement is enforceable upon divorce is whether the agreement was substantively fair (not unconscionable) when executed.  For example, an agreement under which a spouse with little or no income or assets agrees to waive a claim to any marital property or maintenance upon divorce, and in exchange for this waiver is not granted any alternative rights to support or property, may later be found to have been substantively unfair when executed, providing a basis to invalidate the agreement.

Substantive Fairness at the Time of Enforcement 

Although most properly drafted antenuptial agreements are upheld by the courts, sometimes an antenuptial agreement is vulnerable, it is typically vulnerable on the grounds that it is substantively unfair (unconscionable) upon enforcement.  This means that the more time and thought put into thinking about the future at the time the agreement was originally drafted, and the more effort placed into tying to assure that the agreement will be found to be substantively fair upon divorce, the more likely the agreement will be found to be valid.

In looking at an analyzing fairness, a trial court will look at the reasonable expectations of each party as to the scope and ultimate effect of the contract in the event the marriage should terminate by dissolution and whether intervening events, such as the birth of a child, have defeated those expectations to the point where enforcement of the agreement would be oppressive or unconscionable.   

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Burden of Proof

The party challenging the agreement is the party bearing the burden of showing that the agreement was procedurally or substantively unfair at the time of execution or is substantively unfair at the time of divorce, as to limits on the award of marital property or limits on the award of spousal maintenance. 

Brian has zealously protected the rights of its clients when it comes to antenuptial agreements.  He has successfully invalidated parts or all of such agreements when improperly drafted or when enforcement was substantively unfair, and has also successfully defended the validity of well drafted agreements. 

Brian strives to draft agreements with the goal of assuring fairness to our clients and their future spouses, with the goal of withstanding future challenges to the agreements he helps negotiate.

Contact Brian today to discuss whether or not an antenuptial or postnuptial agreement is right for you, and what is needed to begin the process.