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Are prenuptial agreements worth the paper they're written on?

Minnesota is a no-fault divorce state. That means that either party may file for divorce without citing specific grounds. It also means that marital property, financial assets and debts accumulated during the marriage is subject to equitable division between the parties, no matter who filed.

Many individuals with significant financial assets or property they wish to preserve for their children of a first marriage are opting to draft a prenuptial agreement prior to remarriage. With a premarital contract, the parties may name specific assets they intend to keep as separate property, in the event of a divorce. But how legally airtight are these prenuptial agreements in contested divorce litigation? 

Terms and conditions of a prenuptial agreement

Property listed as separate property in a prenup must be agreed to by both parties. Part of the terms and conditions will be that the property is treated as separate assets during the course of the marriage and cannot be commingled (mixed together) with marital assets for the purposes of increasing investment value or eliminating marital debt. As long as the individual assets remain separate, the agreement will likely hold up in litigation.

What makes them airtight?

Minnesota family law judges will uphold the four corners of the signed contract only if the signatories (both spouses) fully understood the terms and conditions they were agreeing to. To be considered legally airtight, these factors must be taken into consideration when drafting and signing a prenuptial agreement:

1. Parties must have ample time to consider terms and conditions of the agreement. Typically, six months in advance of the marriage is sufficient.

2. Each party must be represented by their own legal counsel or choose to represent themselves without a lawyer. One attorney may draft the agreement, but cannot represent both parties for signing.

3. The terms of the agreement may not be considered inherently unfair if enforced in divorce.

4. Neither party must be compelled to sign the agreement under emotional, financial or legal duress.

If you are considering a first marriage or marrying again in the Twin Cities metropolitan area and need to protect certain assets from classification as marital property, talk to an experienced St. Paul family law attorney before you sign.

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