The Mn Criminal Defense, Personal Injury & Family Law Blog
Prenuptial Agreements and Buffalo, MN Divorce Lawyers
February 27, 2020
No one wants or expects to die early. But responsible people obtain life insurance policies, especially once they have families. So, their families are protected if the unthinkable occurs.
In some ways, a prenuptial agreement is a lot like a life insurance policy. No one wants or expects to get divorced. Nevertheless, responsible spouses usually obtain premarital agreements. So, their families are protected if the unthinkable occurs. In this context, protecting one’s family usually means avoiding an expensive and protracted marriage dissolution.
In other ways, a prenuptial agreement is a lot more than a life insurance policy. Buffalo, MN divorce lawyers can draft prenuptial agreements that resolve financial disagreements before they become arguments. IN other words, a life insurance policy cannot prolonge your life. But a premarital agreement could very well prolonge your marriage.
Making a Prenuptial Agreement
Life insurance policies and prenuptial agreements are both contracts. So, both these documents must have all the basic elements of a contract, including:
Offer and Acceptance: A few Buffalo, MN divorce lawyers draft vague prenuptial agreements, reasoning that such documents are more flexible. That might be true, but such documents also might be unenforceable. All the terms must be clear. If circumstances change, a prenup can be modified later.
Consideration: An agreement in principle is not an enforceable contract. Each signatory must either get something of value or give up something of value. The consideration need not be substantial or even tangible, but it must be real.
Mutuality: This contract term often has two basic meanings. First, there must be a “meeting of the minds.” Both parties must agree to the same terms at the same time. Additionally, both spouses must have roughly equal bargaining power. If only one spouse has a Buffalo, MN divorce lawyer, mutuality is arguably absent.
Financial terms usually dominate most prenuptial agreements. Commonly, spouses classify property as marital or non-marital. This distinction is not always black and white. In fact, unless the parties have a prenup, property classification and division is usually the most time-consuming part of a divorce case.
Other financial provisions could include spousal support caps. That’s especially true if one spouse is substantially wealthier than the other spouse. Frequently, spousal support caps have stairstep provisions. The longer the marriage lasts, the smaller the cap becomes.
Many prenuptial agreements also contain nonfinancial provisions, specifically with regard to succession and inheritance matters. Children from a first marriage generally have no such rights. The same goes for stepchildren, unless the nonbiological spouse adopts them. Many times, people want to include their biological or stepchildren in these plans. A prenup, usually when combined with a will, might be the only way to accomplish this goal.
Prenuptial agreements cannot cover child custody or child support matters. These decisions must be in the best interests of the children, as opposed to the best interests of the parents.
Buffalo, MN Divorce Lawyers and Breaking Prenuptial Agreements
Very few contracts are set in stone, and prenuptial agreements are generally no exception. In addition to the technical requirements listed above, there are several other ways for a Buffalo, MN divorce lawyer to successfully challenge an unfavorable premarital agreement:
Failure to Record: This technicality usually only applies to contracts which affect property rights. Premarital agreements almost always fall into this category.
No Separate Counsel: Each spouse must have an independent Buffalo, MN divorce lawyer. An attorney usually cannot represent both spouses in a family law matter, even if they agree to joint representation. Their interests are too adverse.
Failure to Disclose Information: This requirement is not as broad as it seems. First, the withheld information must have been material. Lying about a tax debt probably does not affect a property division. Second, the challenging spouse cannot plead ignorance. If the information was available elsewhere, the other spouse probably did not have a duty to disclose it.
Unconscionable Division: There is a difference between uneven and unconscionable. 70-30 is uneven, but probably not unconscionable.
Involuntary Agreement: The same principles apply here. Pressure to sign, even if it includes a “sign or else” ultimatum, is usually insufficient. But sometimes, the pressure is too much. For example, Wife might spring a prenup on Husband the night before a destination wedding in Barbados.
Most prenuptial agreements in Crow Wing County have severability clauses. So, if a judge invalidates one part because it is unconscionable or whatever, the remainder is still valid.
Reach Out to Diligent Attorneys
Premarital agreements often make marriages last longer and divorces less taxing. For a free consultation with an experienced Buffalo, MN divorce lawyer, contact Carlson & Jones, P.A. Convenient payment plans are available.