Love is in the February Air

February 2017

February is generally known as the month of love, and it had me thinking about marriage. So, I hopped onto Urban Dictionary* to see how others define it. Among the traditional definitions, I found a few gems such as “the number one cause of divorce” and “the most successful wealth transfer scheme ever invented.” Now, is this funny ha-ha or funny sad? Maybe a little bit of both.

With this in mind, there is one question people usually ask. Is there any way to prepare and plan before you walk down the aisle? One option to investigate is using a prenuptial agreement. A prenup is a legal contract that is entered into prior to marriage. It allows a couple to alter their spousal rights under state law in the event of divorce or death. If you’re already married, a postnuptial agreement can be used to do this also.

To many this sounds hard and not very romantic. However, a recent study by the American Academy of Matrimonial Lawyers found that 62% of the attorneys cited have seen an increase in the total number of clients who are seeking prenups during the last three years. Some of the common reasons for entering into a prenup include:

  • It’s your second marriage and you want to protect the interests of your children;
  • You have specific personal and business assets which need to be protected;
  • There is a large disparity in the amount of debt being brought into the marriage;
  • One party is responsible for support obligations;
  • You’ve been through a contentious divorce and want to set expectations in advance; or
  • You plan to quit your job in order to raise a family.

In Minnesota, in order for the agreement to be valid, it must be in writing with full disclosure of the parties’ earnings and assets. This way both parties can make informed decisions about the spousal rights they may give up. Interestingly, state law only requires that each party be given the opportunity to consult with his or her own legal counsel, but it is always advisable for each party to have his or her own attorney. Otherwise, you run the risk of an unenforceable contract, especially if the agreement seems unfair to one party given the circumstances.  A postnuptial agreement does, however, require each party to be represented by separate legal counsel at the time of its signing.

Entering into a prenuptial agreement does not mean the couple is expecting a future divorce. What it can signify is that both parties want to foster upfront and honest communication and plan in advance to prevent surprises in the future. The key to a successful prenup is discussing the topic sooner rather than later. The agreement should be entered into well in advance of the wedding date.

*Warning: some definitions found under Urban Dictionary are colorful and far from politically correct. The author and the firm do not intend to endorse any of the definitions by referencing them.

This post was written by Karen Schlotthauer, an attorney in our Trust & Estates practice group.