One of the primary issues to be discussed with any client when drafting a prenuptial agreement (or, in Minnesota, an “Antenuptial” agreement) is the validity of the provisions being agreed to. The validity of a provision in a prenuptial agreement depends on the subject of the provision, and all of the facts surrounding the creation of the agreement.
Agreements that have to do with child custody or child support are very unlikely to be enforced by a court. Agreements that have to do with non-marital assets (assets owned by the parties prior to the marriage, or given as gifts during the marriage to one party and not to both) are likely to be enforceable as long as: a) “there is a full and fair disclosure of the earnings and property of each party”, and b) “the parties have had an opportunity to consult with legal counsel of their own choice.” Minn. Stat. §519.11, subd. 1. If the provision covers marital property (property acquired by the parties during the marriage), then the validity of the provision will be determined by the following factors:
- whether there was fair and full disclosure of the parties’ assets;
- whether the agreement was supported by adequate consideration;
- whether both parties had knowledge of the material particulars of the agreement and of how those provisions impacted the parties’ rights in the absence of the agreement; and
- whether the agreement was procured by an abuse of fiduciary relations, undue influence, or duress.
In re Estate of Kinney, 733 N.W.2d 118, 124 (Minn. 2007).
Analysis of these factors is very complex and will be different in every case. For this reason, an attorney should carefully consider what steps can be taken to maximize the validity of the agreement as it is being drafted.