Minnesota law allows parties to make agreements before their marriage about what will happen in case they get divorced. Most people are at least vaguely aware of these type of agreements, and commonly call them “prenuptial agreements.” Nearly every client I have met with regarding a prenuptial agreement has been surprised by at least one aspect of Minnesota’s prenuptial agreement laws. I thought it would be interesting to set out a few things that people find most surprising.
Many people are surprised to learn that agreements made before marriage are not called “prenuptial agreements” in Minnesota. Minnesota Statutes Section 519.11 refers to such agreements as “Antenuptial Agreements”. “Ante” is a Latin prefix which means “before”. Hence, whether you say “antenuptial” or “prenuptial”, the meaning is the same – an agreement made before the nuptials.
You Cannot Make Agreements Regarding Custody or Parenting Time.
Another aspect of prenuptial agreements in Minnesota that many people find surprising is that Minnesota prohibits prenuptial agreements from determining how custody and parenting time of children will work in the event of a divorce. Because a child’s welfare is so important, the legislature insists the door be left open for a judge to make whatever custody and parenting time arrangements are most beneficial to a child at the time of the divorce, rather than setting that arrangement in stone before the marriage in a prenuptial agreement.
You Can Protect Non-Marital Claims Even Without a Prenuptial Agreement.
Often times, people seek to get a prenuptial agreement because they have significant financial assets which they want to have protected in the event of a divorce. Many of those same people are surprised to learn that their interests in pre-marital assets can still be protected even without a prenuptial agreement. In general, courts will award each party any assets that they owned prior to the marriage as their non-marital property. Even when a pre-marital asset has been co-mingled in some way with a marital asset, the non-marital interest can still be preserved through appropriate documentation and tracing. The advantage of a prenuptial agreement, however, is that it adds a greater layer of protection for pre-marital assets, and it allows parties to skip the requirement of providing tracing documentation, which can result in a much faster and much cheaper divorce process.