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Prenuptial agreements, or “prenups,” are written contracts between individuals intending to marry which address key issues in cases of divorce or death. Over the past thirty-five years, family law attorney Kathleen M. Newman of the DeWitt LLP Law Firm has advised clients who want to divorce about the ramifications of the prenups they signed before the marriage in a divorce action.  Kathleen also works with the DeWitt's Estate Planning team in drafting prenup agreements regarding the impact of the prenup in the event of a divorce or death.    

Consider meeting with a family law attorney about a prenup if any of the below apply:

• You’re a business owner.  Generally, you would not want a divorce to result in the valuation of your business and an award to your spouse of up to one half of the business value.  By classifying the business in your prenup as “non-marital” property, you may be able to avoid having the business valued in the divorce.  
• Substantial differences in spousal income.  Prenups can provide that neither party can receive spousal maintenance in the event of a divorce, or can limit the amount and/or duration of any spousal maintenance award.  This is particularly important in cases where spousal income varies substantially or when the parties intend that one parent would be a stay-at-home parent while the other parent is the breadwinner.    
• A significant age difference.  An older spouse may want a prenup to limit future obligations because of a shorter time to recover financially from a divorce. 
• You are entering the marriage with children from another relationship.   In that case, you will likely want a prenup to financially protect your other children.
• Attorney’s fees in a divorce action.  In most cases where a spouse initiates a divorce, they request an award of attorney’s fees, based on a claim that they do not have sufficient income or assets to pay their own legal fees.  A prenup can include a provision that each party pay their own fees, or limit the amount that can be paid to a spouse who receives limited assets in the divorce.
• Pre-Marriage assets.  You own significant assets prior to your marriage, and you want to retain those assets in the event of a divorce.

If a prenup makes sense in your case, it must be drafted in compliance with Minnesota law -- otherwise, it may not be enforced at the time of divorce or death.  The advice of an experienced divorce attorney is necessary in drafting a prenup to protect your rights.

Take-away:

Prenups are useful tools to protect spouses in cases of divorce or death.  However, Minnesota law imposes strict requirements on their formation and contents.  Failure to comply with these requirements may cause the prenup to be unenforceable.  Family Law attorney Kathleen M. Newman of the DeWitt LLP Law Firm will provide you experienced advice about whether a  prenup makes sense in your particular case or, if you are getting divorced, how a prenup signed prior to your marriage will impact an award of assets or support.  If it does, Kathy and her team are prepared to assist you.  If you need to have a prenup prior to your marriage, or if you have a prenup that will impact your divorce, please contact Kathy to schedule a consultation. 

Sources:

Minn. Stat. Section 519.11.

“Financial Planning for Young Adults: Prenuptial Agreements—What You Should Know Before You Get Married,” Forbes (October 16, 2020).