Valentine’s Day – the day of love! A celebration for all couples everywhere! Many couples get engaged on this day and start planning their weddings. Some might even call February 14th the start of the prenup season and it doesn’t need to be an idea that is ridiculed as it is just another step to ensure you have properly prepared for the future. Whether you’re already married or in the wedding planning mode, one discussion that should happen, but oftentimes is overlooked, is the benefit of prenuptial and postnuptial agreements.
So what exactly are prenuptial and postnuptial agreements? They are agreements that allow a couple to alter their spousal rights under state law in the event of death or divorce. A prenup is used prior to marriage and a postnuptial agreement is used if you’re already married.
- What are the common reasons for entering into one of these agreements?
- 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.
These agreements do 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.
FMJ’s Trusts & Estates group wishes you a happy Valentine’s Day and one extra piece of advice: maybe don’t bring up prenuptial and postnuptial agreements at Valentine’s Day dinner.
If you’re interested in learning more about prenups and postnups, FMJ’s Trusts & Estates attorney Karen Schlotthauer can be reached at karen.schlotthauer@fmjlaw.com or by calling 952-995-9500.
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