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A prenuptial agreement (“prenup”), also known as an antenuptial agreement, is a written contract between two individuals who intend to marry.  These agreements allow spouses to control how certain issues are resolved if a divorce or death occurs.

While not everybody necessarily needs a prenup, here are some good reasons why you might need one:

1.You own a business prior to the marriage.  In many cases, you would not want your spouse to have an interest in a business you owned prior to the marriage.   A prenup may be able to remove your pre-marital business from the marital estate before the assets are divided in the event of divorce.

2. Income disparity.  In many divorces, spousal maintenance (alimony) is an issue because one spouse earns a substantially higher income than the other, so spousal maintenance may be awarded to the spouse with the smaller income.  Spousal maintenance can be temporary, allowing for a return to employment, or long term. People deciding to marry should give serious consideration to expectations regarding income, for example if they want to have children and have one spouse leave the workforce to care for them.  In a prenup, the parties can agree that neither will receive any spousal maintenance if they divorce, limit the number of years spousal maintenance can be awarded, or limit the amount of spousal maintenance. Resolving these issues in advance is also often attractive to the other spouse because it places defined limits on future obligations.   

3. In divorces, all property owned by the parties at the time of divorce is considered marital.  If a person wants to claim they owned property prior to the marriage, non-marital property, and have that property excluded from the division of marital estate, one has to prove the property is non-marital, sometimes an expensive undertaking.  A prenup can identify what property will be considered non-marital in a divorce, excluding that property from division, and preventing the expensive fight over what property is non-marital.

4. You have children from a previous relationship.   In that case, you may want a prenup to protect your assets to provide for your children of that relationship. 

5. You have family property, perhaps some hunting land or a cabin which has been in the family for generations.   Prenups are often used to keep such items in the family.

Prenups are useful tools which give spouses increased control over what happens in divorce and death. However, not all prenups are enforceable as Minnesota law requires that prenups meet certain requirements, to be enforceable at the time of divorce.   Attorney Kathleen Newman, of our Minneapolis office,  works with her clients to draft prenups, and provide vigorous representation in divorces where parties have a prenup.

Sources:

Minn. Stat. Section 519.11
“A Prenup For the Rest Of Us: Rethinking The Premarital Agreement,” Forbes (June 27, 2019).