The Mn Criminal Defense, Personal Injury & Family Law Blog
Five Ways a Hutchinson, MN Family Law Attorney Can Break a Prenuptial Agreement
May 31, 2019
Premarital agreements are no longer exclusively for the 1 percent. The number of these agreements has increased 500 percent since the 1990s. Such pacts are especially common in subsequent marriages. Prenuptial agreements clarify property and inheritance rights, thus streamlining the divorce process. Furthermore, since many married couples fight over these subjects, especially money, a premarital agreement usually strengthens your marriage.
Minnesota lawmakers have not yet adopted the Uniform Premarital and Marital Agreements Act. The UPMAA standardizes formation and dissolution matters. So, there may be some significant differences between McLeod County and some other jurisdictions in terms of prenuptial agreement enforcement.
However, as a general rule, once someone signs a contract, that pact is not easy to break. So, if a spouse wants to invalidate an unfavorable prenuptial agreement in the lead-up to a divorce, there are basically five different options. Your Hutchinson, MN family law attorney will thoroughly go over the pros and cons of each one in your particular case.
In many cases, the p-word comes up many months before the wedding. The parties have plenty of time to digest all the aspects of the agreement before signing it. More importantly, they have the chance to decide if they really want to move forward with the marriage.
But in other cases, the p-word does not come up until the last minute. Even if both spouses have their own Hutchinson, MN family law attorney, they do not have the opportunity to reflect on the agreement. It’s a matter of signing or not signing.
Timing is especially an issue if one spouse works with a lawyer for several months before suddenly springing the prenuptial agreement on the other spouse.
Timing and duress often overlap. Assume Nadia and Ben plan an expensive, destination wedding. Two days before the ceremony, when most of the guests have made final travel plans, Nadia gives Ben a prenup. Even if Nadia applies no additional pressure, Ben may feel like he has to sign the agreement.
In other cases, however, one spouse must apply considerable pressure. A “sign or else” ultimatum may not be enough. The ultimatum must be something like “you’re not leaving this room until you sign.”
Lack of Full Disclosure
Generally, nondisclosure is the most common argument in this area, largely because it’s one of the most successful ones. Spouses routinely try to hide money or property in other corporate entities. Or, they voluntarily increase their withholding levels to make their incomes look smaller.
Typically, the nondisclosure must be material. Dishonesty about peripheral matters, such as the value of a used car, are probably not enough to overturn the agreement.
Additionally, the information must not be available anywhere else. If Nadia and Ben are also business partners and Nadia lies about the business’ value, Ben probably cannot claim he was duped into signing the pact. As a co-owner, he could obtain all the financial information he wanted.
There is a difference between “uneven” and “unconscionable.” A 60-40 marital property division is uneven, but it is probably not unconscionable, especially in some situations. A 70-30 division would probably raise an eyebrow. But in many situations, especially if the 30 percent spouse has substantial nonmarital property, the division may not be unconscionable. To reach that level, the agreement must usually say something like “I get all the assets and you get all the debts.” Unconscionable divisions leave one spouse with insufficient resources to make ends meet post-divorce.
Many courts impose an additional condition. The division must have been unconscionable at the time it was made. This issue comes up frequently with regard to stock certificates. These assets could be virtually worthless one day (think Amazon stock in 1999) and worth a fortune later (Amazon stock today).
Lack of Separate Counsel
If both spouses did not have a Hutchinson, MN family law attorney, a judge will not automatically invalidate the prenuptial agreement, but there is a strong presumption of invalidity. Similarly, separate counsel covers a multitude of sins. Many judges may overlook some undue pressure or other flaws if both spouses had their own lawyers.
The attorneys must be truly separate. If Nadia finds an attorney for Ben and she also pays the bill, Ben’s attorney is not really independent. The same conclusion may apply if Nadia suggests a certain attorney whom Ben eventually retains.