North Dakota Prenuptial Agreements

Ready to say “I do” in the heart of the Peace Garden State? Before you waltz down the aisle, consider planting the seeds for a strong financial future with a prenup. Let’s discuss everything you need to know about prenups in the beautiful state of North Dakota.

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North Dakota prenup basics

A prenuptial agreement also known as a premarital agreement or prenup in North Dakota, is a contract drafted between two individuals planning to get married. In the state of North Dakota. The Uniform Premarital and Marital Agreements Act governs prenups. This chapter lays out the specific guidelines required for the construction and enforcement of prenups and other marital agreements in ND. Remember, prenups are only enforceable if you actually end up saying “I do” (no marriage=no prenup).

How to create a valid and enforceable prenup in North Dakota

Drum roll please… the moment you’ve all been waiting for. Let’s discuss what you should do (and not do) to create a valid and enforceable prenup in ND:

Requirements:

- The contract must be in writing
- Both parties must sign the agreement.
- The parties must enter the prenup voluntarily without duress.
- Each party had adequate financial disclosure, which means each party received an accurate description and good-faith estimate of the value of one another’s property, liabilities, and income of the other party.
- Each party had *access* to legal representation (this does not mean you need a lawyer, it means you need sufficient time to get one if you want one… see more detail on this below).
- The prenup must not include unconscionable terms.
- The prenup must not cause a substantial hardship on one of the parties.

Can not include:

- Do not include child support terms in the prenup.
- Do not include child custody terms in the prenup.
- Do not include terms that limit the legal options available to a victim of domestic violence.
- Do not include terms that attempt to change the legal reasons for getting a separation or divorce in that state.
- Do not include terms that punish someone for starting divorce or separation proceedings.
- Do not include terms that would create a substantial hardship for one person.
- Do not lie or omit any financial information in your financial disclosure.
- Do not enter the agreement under duress or involuntarily.
- Do not enter the agreement if both parties don’t have enough time to get a lawyer if they want one (it’s not required, though).

Do I need a lawyer for my North Dakota prenup?

North Dakota has made it very straightforward for you. You don’t need a lawyer for a valid and enforceable prenup in ND. You only need access to one. A person has “access” to an attorney if:

You have enough time before signing the agreement to decide if you want a lawyer and to find one to advise you.

The other person has a lawyer, and either you can afford to hire your own or the other person will pay for it.

In plain English? It’s about making sure that both parties have enough time to get a lawyer if they want one. And, if one person has a lawyer, the other person also has a fair chance to get legal advice, either by paying for it themselves or having the other person cover the cost.

Who would benefit from signing a premarital agreement in North Dakota?

Premarital agreements are not strictly for wealthy individuals. They are for anyone looking to ensure their future is planned for the way they wish in case of death or divorce.

Here are a few more examples of people who may benefit from a North Dakota prenup:

People with pre-marital assets, such as real estate or retirement funds.
People who don’t have money yet, but expect to make money in the future.
Anyone who wants peace of mind that their financial future is secured.
Soon-to-be spouses with individual debt who want to ensure the other spouse is not liable for their debt.
Families with children from prior marriages can ensure their children are the beneficiaries of their assets and not a future ex-spouse.
Stay-at-home parents who want to ensure they are financially taken care of in the event of a divorce or death of a spouse.
Soon-to-be spouses who own businesses or individual properties.
Couples who want to align on different life goals, such as retirement, estate planning, tax filing, marital expenses, and more.

The default law on property division in North Dakota

Without a prenup, a North Dakota court will divide property in a divorce under the framework of equitable distribution. This means property is split equitably, not necessarily equally (50/50). This means property could be divided 30/70, 40/60, or any other combination that the court deems equitable.

North Dakota courts will consider the following factors when determining how to make a just and proper division of assets:

Ages of the spouses
Earning ability of each spouse
The duration of the marriage
Conduct of the parties during the marriage
The spouses’ station in life
The circumstances and necessities of each person, such as their health and physical condition
The financial circumstances of each person, as shown by the property owned at the time.

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What can you put in a North Dakota prenup?

So, let’s talk about what you can put into your premarital agreement in North Dakota. Spoiler alert: not everything goes. Generally, North Dakota courts only uphold terms that are related to financial or certain legal matters, such as:

Division of property
Ownership of debt
Spousal support
Rights to inheritances
Rights to gifts
Clauses related to tax matters
Dispute resolution clauses
Choice of law
Any other matter that does not violate public policy or any other law

However, a North Dakota court will not enforce any of the following clauses:

Any limits on the legal options available to a victim of domestic violence.
Attempts to change the legal reasons for getting a separation or divorce in that state.
Punishing someone for starting divorce or separation proceedings.
Child custody terms

How to end a marriage in North Dakota

You can file for divorce if you or your spouse are a resident of North Dakota. To meet the residency requirement, you need to have lived in North Dakota for six (6) months. (N.D. Cent. Code § 14-05-17).
In North Dakota, you can file for divorce in one of two ways:

No-fault divorce:

This is the most common type, where you simply state that you and your spouse have “irreconcilable differences” and can’t make the marriage work.

Fault divorce:

This is less common and requires proving that your spouse did something wrong, like adultery, cruelty, or substance abuse.

The default law on spousal support in North Dakota

Spousal support is the payment from one ex-spouse (the wealthier one) to the other less monied spouse in the event of a divorce. Without a prenuptial agreement, a North Dakota court can order one spouse to pay the other spousal support for a limited time, but not permanently. This is done only if the receiving spouse doesn’t have enough money or property to meet their basic needs, and the paying spouse can afford it without facing financial hardship.

The amount and duration of support depend on factors like age, income, length of the marriage, contributions to the marriage, and each person’s ability to become self-supporting. The support might be for rehabilitation (helping someone get back on their feet), for a general period to adjust to a single life, or for a lump sum payment.

It’s important to remember that having a prenuptial agreement can change these default rules, so it’s always good to talk to a lawyer if you’re considering one.

Important case law in North Dakota

From time to time, North Dakota courts have to examine prenuptial agreements during divorce cases. These court decisions then become part of the legal record, showing us how the state interprets such agreements (lawyers call this “case law”). We’ve looked at a few important cases that illustrate how North Dakota courts view prenups and the impact they can have on couples.

A case about a prenup with no lawyer, improper financial disclosure, and presented two days before the wedding

Mr. and Mrs. Binek, both with children from previous marriages, decided to get married (this was back in the 80s). Mr. Binek, significantly wealthier, presented Mrs. Binek with a prenup just two days before their wedding. He insisted she sign it or the marriage was off. Although Mrs. Binek didn’t have a lawyer, she signed.

Years later, when they divorced and their financial situations had changed, Mrs. Binek challenged the prenup’s validity. She claimed she signed under pressure, lacked legal counsel, and wasn’t fully informed about her husband’s finances.

The court disagreed. They found Mrs. Binek had the chance to get a lawyer but chose not to, understood the agreement, and signed willingly. The short notice before the wedding wasn’t enough to invalidate it.

Regarding finances, despite no detailed financial disclosure, the prenup stated both parties were aware of each other’s assets. Plus, Mrs. Binek’s testimony showed she had a basic understanding of Mr. Binek’s financial situation, making it sufficient disclosure in the court’s eyes.

Moral of the story? You can’t just get out of a prenup because you don’t like the outcome years later. Even if you signed the prenup a few days before, didn’t have an attorney or detailed financial disclosure, it generally (without more) may not be enough to invalidate the agreement.

A prenup case regarding spousal support waivers

We’ll spare you the extensive details– A North Dakota court won’t always uphold a spousal support waiver in a prenuptial agreement. The Sailer case shows that even if you waive spousal support in a prenup, a North Dakota court may still require you to pay it if your ex-spouse ends up needing public assistance because of that waiver. In the specific case, the wife’s argued the prenup should be thrown out because she couldn’t prove she’d need public assistance without spousal support.

An example of how equitable distribution works when there is not a prenup

This is an example of what could happen if you do not have a prenup. In 2024, a North Dakota court divided the marital assets of one couple in a way that wasn’t 50/50. The husband got a larger share (61%), including the farm, while the wife got 39%, including all retirement funds and a significant cash payment.

Overall, the court aimed for a fair outcome, even if the division wasn’t perfectly equal on paper. They took into account the unique circumstances of the couple and their assets to reach a decision that was just and equitable for both.

Musland v. Musland, 6 N.W.3d 649 (2024)