Is there a difference between prenuptial and postnuptial agreements?
Prenuptial agreements—often called “prenups”—are a common legal device used to address the division of a couple’s assets in the event of legal separation, divorce or death. Such agreements can be made by a couple prior to the marriage (antenuptial) or afterward (postnuptial). Minnesota law will recognize and enforce agreements of either type provided certain legal standards are met.
There are two basic requirements for creating an enforceable prenup in Minnesota:
●There must be “full and fair disclosure” of each prospective spouse’s earnings and property.
●Each party must have an opportunity to consult with legal counsel of their choice.
This means that one party cannot surprise the other with a prenup on their wedding day. A prenup is a legal contract, after all, and should be treated as such. Each partner has the right to have their own attorney review any antenuptial agreement proposed by the other partner.
The “full and fair disclosure” rule is further designed to prevent one partner from hiding assets. A well-drafted prenup should include a list of each partner’s known assets and income sources to avoid any misunderstanding.
A postnuptial agreement must meet the same requirements as an antenuptial agreement. One key difference is that Minnesota law will not enforce a postnuptial agreement unless each party has separate legal representation—unlike an antenuptial where each partner must only have the opportunity to speak with his or her own lawyer. A postnuptial contract may also be unenforceable if either spouse files for legal separation or divorce within two years of signing the agreement.
What a Prenup May and May Not Cover
An antenuptial or postnuptial agreement can spell out a number of issues related to property, including how to treat separate property that each spouse owned prior to the marriage, how to divide marital property in the event of divorce (or the death of one spouse), and alimony payments.
One subject that a prenup cannot legally address is potential child support. Under Minnesota law, child support belongs to the child, not the parent, and cannot be affected by a prenup.
A prenuptial agreement is legal in Minnesota if there is “full and fair disclosure” the couple’s assets and each partner has an opportunity to consult with their own attorney.