Don’t let that Midwestern charm fool you, prenups are always a good idea don’t cha know? Minnesota has some pretty tricky requirements for prenups but don’t worry, we’ve compiled all the info you need to get started. Keep on reading for some awesome tips, tricks, and hacks to hammer that prenup out before your trip down the aisle.
In Minnesota, prenups are officially referred to as antenuptial agreements. An antenuptial agreement is a contract between prospective spouses entered into prior to marriage. Although it is executed prior to marriage, it does not become effective until after the wedding. Minnesota prenups are governed by the state’s statutes and case law. That is where you will find the requirements for creating a valid prenup (but don’t worry, we’ll highlight everything below).
So, what can you include in your prenup? The two big categories are alimony and property division. Some other common topics include inheritance, insurance policy benefits, and gifts. But make a note; in Minnesota, you cannot include provisions related to child custody or child support. Stay tuned for a deep dive.
Requirements for a Valid Minnesota Prenup:
To be valid, your prenup must:
- Be in writing
- Be signed voluntarily by both parties
- Be signed by two witnesses
- Be notarized
- Include fair terms only
- Be signed a reasonable amount of time before the wedding (no procrastination permitted here!)
- Include a full disclosure of your finances (income, assets, and debt) *Do not skimp on this*
- Provide the opportunity for both parties to receive legal advice
- If dealing with real estate, must be filed in the county in which the real estate is located
What to Exclude from your Minnesota Prenup:
- Terms involving child custody or support
- Terms that are unconscionable or unfair (i.e. terms that are unreasonably one sided)
- Terms that violate “public policy”
- Non-financial terms (ex. terms requiring weight loss)
- Provisions that violate public policy (i.e., unlawful, immoral)
Other considerations: your agreement cannot be signed under duress (i.e. demanding your future spouse sign the agreement hours before the wedding)
A Tale of What Not to Do
Ok, story time! This Minnesotan couple – the Kremers – were planning a beautiful destination wedding in the Cayman Islands. Unfortunately, the story goes south from here and ends up in the tightening of prenup requirements for all Minnesotans. While planning the wedding, Mr. Kremer was making some plans of his own. Unbeknownst to his bride to be, he was drawing up a prenuptial agreement with his attorney. Three days before they hop on the flight to the Caymans, Mr. Kremer drops the agreement in Ms. Kremer’s lap and demands that she signs, or the wedding is off. Yikes! Ms. Kremer was able to consult with an attorney the day before their flight. She reluctantly signed and the wedding went forward.
The contents of the prenup were a little one sided. Ms. Kremer waived her right to all maintenance (i.e. alimony/spousal support) and agreed that all marital property (property acquired during the marriage) would be divided based on the financial contribution of the spouses. After they were married, Ms. Kremer tended to the family farm and cared for the couple’s child.
Eventually, the Kremers called it quits. During the divorce, Ms. Kremer argued that the prenup was invalid because it was unfair. Ultimately, the court agreed and in doing so, created stricter prenup requirements for all Minnesotans. The Minnesota Supreme Court did this by breaking down the requirements into two categories: prenups that deal with non-marital property and all other prenups.
For prenups dealing with non-marital property, the Minnesota Supreme Court declared that in order to be valid, couples must (1) provide full and fair disclosure of all of their assets, and (2) be given the opportunity to consult with an attorney prior to signing the agreement.
For all other prenups (prenups addressing alimony and marital property), the court listed the factors to be considered when determining the validity of a prenuptial agreement. Those factors are: (1) whether full and fair disclosure of assets was provided, (2) whether there was adequate consideration for the agreement (meaning that it’s not totally one-sided and there is a mutual exchange), (3) both parties fully understand the agreement and comprehend what rights they are waiving, and (4) whether there was any undue influence, duress, abuse, ect.
In the case of the Kremers, their prenup dealt with non-marital property as well as marital property and alimony. So, the court applied both tests and spoiler alert! They failed. Wah wah. The court determined that the prenup did not have adequate consideration (a fair and mutual exchange) and was entered into under duress. Stated differently, it was unfair and therefore invalid.
Presenting the agreement to Ms. Kremer days before their destination wedding was tantamount to coercion. Essentially Ms. Kremer had very little choice and bargaining power at that point. The wedding wheels were in motion and friends and family were en route. Adding insult to injury, the agreement didn’t provide for the wife at all. Despite the fact that she managed the farm and cared for the couple’s child, she was entitled to virtually nothing should the couple divorce. Definitely not fair.
So here are the big takeaways: get your prenup taken care of well in advance of your wedding. Even if you both agree, you don’t want to give the appearance that your prenup was stressfully hammered out in the 11th hour. Get it done early! Next, consult with any attorney – or at least give yourself the time to have the option to consult with an attorney. A last minute consultation the day before the wedding likely won’t cut it.
Kremer v. Kremer, 912 N.W.2d 617 (2018)
So, just how severe are procedural requirements for prenups in Minnesota?
To put it bluntly, very. Let’s let another lovely Minnesotan couple illustrate this point for us. The Muschiks entered into their prenup three days before their wedding. They even got it notarized! However, they did not have two witnesses sign the agreement. Dun, dun, dun.
When the couple divorced, the court threw out the entire prenup for lack of witness signatures. What seemed like a minor detail turned out to be very consequential down the road.
The moral of the story is: no matter how minor these requirements may seem, a Minnesota court will absolutely invalidate your prenup if it does not meet the procedural requirements (see the Kremer case above!). Put it in writing and then you, your spouse, and two witnesses must sign the agreement before a notary.
Muschik v. Conner-Muschik, 920 N.W.2d 215 (2018)
Official term for divorce: Dissolution of marriage
Dissolution of marriage is the court process of ending a legal marriage. No specific reason is required in order to dissolve your marriage in Minnesota because it is a “no fault” state. All you have to do is let the court know that your marriage is irretrievably broken. This is in contrast to “fault” states in which adultery and other “faults” can be grounds for a divorce. Prior to initiating the process in court, you and your spouse must either live apart for 180 days or let the court know that there is serious marital discord.
How to End a Marriage in Minnesota
If it’s time to call it quits, you have two options in Minnesota: annulment and dissolution of marriage. There is technically a third option as well. You can file for a legal separation but, this will not end your marriage. Instead, you will just be “legally separated”. This allows you and your spouse to divide your assets and create child custody arrangements while still remaining legally married.
Participation of both spouses in the dissolution/annulment process is not technically required. Each spouse has the right to end the marriage. Agreement of the other spouse is not a requirement. If a spouse refuses to participate, the court will enter a “default judgment” which recognizes the failure to participate and allows the case to proceed forward without them.
Here’s an interesting tidbit: you can’t get a divorce just anywhere. All 50 states have residency requirements which you must meet prior to filing for dissolution. Here are the Minnesota requirements:
- You or your spouse must live in Minnesota at least 6 months prior to filing (or one of you must be a member of the military and have maintained Minnesota residency) and
- You must file in the specific county where you and your spouse reside.
In Minnesota, property which is not considered a part of the “marital estate” is called non-marital property. That means that should you and your spouse divorce, any non-marital property would not be divided. So, what types of property are included in non-marital property? In Minnesota, this can include property acquired before marriage, inheritance, gifts to one spouse, or property purchased with non-marital funds. However, if you chose to have a prenup, you and your spouse can decide which specific property is considered marital or non-marital.
Spousal maintenance (also commonly known as spousal support or alimony) is the process of providing financial support from one spouse to the other during or after divorce. It is awarded by the court when (1) one spouse lacks sufficient property; or (2) one spouse is unable to support themselves and maintain the lifestyle established during marriage. However, if you and your future spouse aren’t keen on the idea of maintenance, you can use your prenup to limit or completely eliminate it altogether.
Minnesota Maintenance Categories in Real Life
When deciding whether to award maintenance, the court has several different categories of maintenance to choose from as well as a list of factors to help in their analysis. Some of those factors include:
- The length of the marriage
- The standard of living established during the marriage
- Both spouse’s finances
- Age of the spouses
(You can see a full list of the factors in Section 518.552). This Minnesotan couple’s divorce helps illustrate that analysis. Husband and wife were together for twenty plus years. However, they were only married for two years prior to filing for divorce. During the divorce, wife requested maintenance. She struggled with Lyme disease and chronic pain. However, at the time of the divorce, she was healthy. She had also been out of the workforce for two years. Based on these circumstances, she requested permanent maintenance.
Her husband and the court disagreed. While they may have been together for a significant amount of time, the marriage itself was quite short. As listed above, the length of the marriage is what the court considers when determining whether to award maintenance. Additionally, while wife may have health issues, she was healthy at the time of the divorce and was physically capable of providing for herself.
While wife didn’t get exactly what she requested (permanent maintenance), the court did award her temporary maintenance. This was intended to help the wife get back on her feet and reenter the workforce. Since she was only out of the workforce for two years, her career prospects were still good.
Dobrin v. Dobrin, 569 N.W.2d 199 (1997)
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Julia Rodgers is HelloPrenup’s CEO and Co-Founder. She is a Massachusetts family law attorney and true believer in the value of prenuptial agreements. HelloPrenup was created with the goal of automating the prenup process, making it more collaborative, time efficient and cost effective. Julia believes that a healthy marriage is one in which couples can openly communicate about finances and life goals. You can read more about us here Questions? Reach out to Julia directly at [email protected].