Whenever I am asked to draft an Antenuptial Agreement (also known as Prenuptial Agreements, or simply Prenups), I like to ask the client why they want one, or why they think they need one. The most common answer is that they want to protect their premarital assets in the event of a divorce. This is a perfectly logical and reasonable response, but what most people don’t know, is that a spouse’s premarital assets will remain that spouse’s nonmarital property (i.e. not marital property that they would have to share with their spouse in the event of a divorce) even without an Antenuptial Agreement.
That is not to say that you should not get a Prenup. As part of a Prenup, both parties acknowledge and disclose their assets and debts at the time of marriage. This is so that there can be no question as to what premarital assets each party had coming into the marriage. And, following a long-term marriage, it can be very difficult to track down old account statements in order to determine premarital assets. In this scenario, then, a Prenup serves the purpose of saving both parties from having to locate old account statements which might no longer be available.
Another reason people give for wanting a Prenup is so that they know exactly how things will get resolved in the event of a divorce, thus saving time and attorney’s fees. Again, what many people do not understand is that Prenups are not airtight. Case law provides that in order to be enforceable, a Prenup must be substantively and procedurally fair both when it was signed, and when it is enforced. If something has happened during the marriage, for example, that makes the Prenup unfair, a Judge could invalidate it. The irony of Prenups, then, is that while the intended purpose is to eliminate litigation in the event of a divorce, it can actually have the opposite effect. If one spouse thinks the Prenup is unfair, he/she could seek to invalidate it, thus adding another layer of litigation to the divorce process.
Prenups are inherently peculiar to family law in that two people who love each other and are about to be married are adversaries in the drafting of this document. Often times it is a spouse’s parent, and not the spouse themselves, who is pushing for it. In the end, a Prenup can simply be like an insurance policy. Hopefully, it’s something you negotiate and sign before you get married, and then you file it away in a safe somewhere and never think about it or look at it again. Still, it is important that you consider all of the implications, and have legal representation during the negotiation of this document.
Meet Marc Beyer
Interested in reading more?
Contact Beyer & Simonson in Edina, Minnesota
If you are facing divorce and any of the divorce-related issues such as spousal maintenance, child support, child custody, property division, or domestic abuse matters, you need our experienced Minneapolis divorce attorneys to help you. Contact Beyer & Simonson in Edina, Minnesota today at (952) 303-6007.