In Minnesota, couples may enter into agreements that determine what happens to their finances and property in the event that the marriage ends in divorce, separation, or in the event of the death of one of them. Such agreements are called antenuptial agreements (sometimes referred to as a prenuptial agreement or “prenup”).

In most instances, antenuptial agreements are used to protect assets an individual wants to keep separate from marital property, but these contracts can also be used to determine how marital debt will be paid off, how spousal maintenance will be structured, and what will happen to assets in the event that the spouse in whose name the assets are held predeceases the other spouse.

Already married, but think an antenuptial agreement would have been a good idea? You can still enter into such an agreement (called a postnuptial agreement) if the agreement: (1) complies with the requirements for antenuptial agreements and Minnesota law; and (2) at the time of its execution each spouse is represented by separate legal counsel.

Postnuptial agreements may not determine the rights of any child of the spouses to child support from either spouse or rights of child custody or parenting time. Also, a postnuptial agreement is presumed unenforceable if either party commences an action for a legal separation or dissolution within two years of the date of its execution unless it can be established that the agreement is fair and equitable.

In addition to these substantive requirements, there are important procedural requirements. For example, both “prenups” and “postnups” must be in writing, signed in the presence of two witnesses, and notarized.