The Mn Criminal Defense, Personal Injury & Family Law Blog
Five Ways to Break a Minnesota Prenup
March 30, 2019
Premarital agreement rules are still rather intricate in Minnesota, largely because lawmakers have still not adopted the Uniform Premarital Agreements Act. For most of its history, the Gopher State has never been a follow-the-crowd jurisdiction. If Minnesota is not the first state to make a move, there is little support for change. That’s probably the main reason marijuana is still mostly illegal in Minnesota.
However, there is a strong presumption in Minnesota family law in favor of out-of-court settlements. If the parties resolve issues their issues in advance, that’s even better. So, to break a premarital agreement, a Buffalo divorce lawyer typically uses one of the following tried-and-true approaches.
Because they concern property matters, premarital agreements must be recorded in the county deed records. This seemingly minor technicality has brought down more prenuptial agreements than you may think.
Many people think the matter is finished once both parties sign on the dotted line, so they never record the instrument. Other times, the couple moves from one county to another one, and their premarital agreement does not move with them.
There are some practical considerations as well. To overcome this objection, the other spouse simply needs to record the instrument. But that’s not as easy as it seems. No one wants to spend several hours digging through old records and recording documents in courthouses. And, the more hurdles that runners must jump over, the less energy they have for the final sprint to the finish line.
Furthermore, failure to record says something about the other attorney. When clients want to challenge premarital agreements, Buffalo divorce lawyers should check the deed records to make sure the agreement is there. If they do not do so, that usually means they don’t have much family law experience and/or they overlook details. Knowledge of an opponent’s weaknesses often comes in handy.
No Separate Counsel
Minnesota State Bar rules make it very clear that one lawyer cannot represent both a husband and a wife in any divorce-related proceeding. But, like failure to record, the lack of separate counsel requirement often has a profound effect.
The key is that both husband and wife must have separate counsel. If Husband generously agrees to pay Wife’s legal bills or graciously refers Wife to a certain attorney, Wife arguably did not have separate counsel. And, unlike recording, lack of separate counsel cannot be undone. If the Buffalo divorce lawyer was not 100 percent independent, the premarital agreement may be hopelessly flawed.
Lack of Full Disclosure
Premarital agreements are only valid in Minnesota if both spouses put all their cards on the table. If Wife does not disclose a separate bank account, even though it’s nonmarital property and technically not part of the premarital agreement, Husband could successfully overturn the agreement.
There may be a corollary here. Some courts impose an additional requirement. If the information was available elsewhere, and the challenging spouse did not diligently look for it, the judge may overlook the lack of disclosure. This issue normally only comes up when both the spouses were business CEOs or otherwise on equal education and vocational footing.
There is almost always some pressure to sign a premarital agreement. Emotional bribery and cajoling (e.g. “If you really love me you’ll sign”) do not make a prenup involuntary. Even if one spouse issues a “sign or else” ultimatum, the agreement is probably not involuntary.
However, there may be some additional circumstances. If Husband springs the prenup on Wife at the last moment, especially if the ceremony is a lavish destination wedding, the pressure to sign could be too much. More than likely, this unfortunate Wife did not have separate counsel either. So, these arguments sometimes overlap.
Sometimes, the proof is in the pudding, as the old saying goes. Blatantly one-sided contracts, including premarital agreements, are usually unenforceable.
There are some important points here. First, there is a difference between uneven and unconscionable. A 60-40 split is uneven but not unconscionable, and the same could be said for a 70-30 or even 80-20 split. Only a division like “I get the assets and you get the debts” is clearly unconscionable.
Second, the agreement must have been unconscionable when it was made. Buyer’s remorse is not enough to overturn a premarital agreement. Stock divisions often fall into this category. Company ownership could be worthless today and extremely valuable tomorrow (e.g. Amazon stock in 1994).
Work with a Tenacious Attorney
Premarital agreements usually stand up in court, but they are not ironclad. For a free consultation with an experienced Buffalo divorce lawyer, contact Carlson & Jones, P.A. We routinely handle matters in Wright County and nearby jurisdictions.