Couples who are entering into marriage with sizable premarital assets may consider — or be advised to consider — a prenuptial (or antenuptial) agreement to protect those assets. For one reason or another, many parties dismiss the option of a prenuptial agreement, only to reassess their situation down the road (even though happily married).
If this sounds like your situation, then you should know that you are not without options. Just because you are married does not mean you can no longer preserve property rights; you can still enter into a contract by signing a postnuptial agreement.
What is a postnuptial agreement?
A postnuptial agreement is like a prenuptial agreement, but it is completed after two people are married. It is a legal contract that addresses property rights and financial agreements in the event of a divorce.
There are a number of requirements with which a postnuptial agreement must comply. For instance, it must be in writing and signed by both spouses, each of whom must have separate legal counsel. There must be a full disclosure of the assets, and the agreement must be fair and equitable both at the time of its execution and at its enforcement. Finally, the agreement cannot make determinations on child support or child custody.
When might it be wise to consider a postnuptial agreement?
Unforeseen events can trigger the need for a postnuptial agreement, for example: infidelity or other instances of marital misconduct, reconciliation after separation, or significant changes in marital or separate assets. In these situations, spouses may have reason to establish or revisit the future division of their property.
It is important to note that a postnuptial agreement is presumed to be invalid if either spouse files for divorce or legal separation within two years of signing the agreement.
How can an attorney help?
If you are discussing a postnuptial agreement with your spouse, legal counsel will be essential. As stated above and as per Minnesota law, a postnuptial agreement is only enforceable if both parties have separate legal counsel at the time it is executed.
Should you have questions about prenuptial or postnuptial agreements, speaking with an attorney can help you secure the answers and guidance you need.