July 10, 2013

Why Prenuptial Agreements?

PaperworkPrenuptial agreements – “What’s Love Got to Do With It?” For people planning their wedding, the thought of entering into a prenuptial agreement may seem unromantic and pessimistic. It addresses what would happen if your marriage doesn’t work out. But a well thought out prenuptial agreement can give you and your spouse control over the terms of your divorce, if that should happen, helping you avoid future litigation, and it also can be a process for discovering your expectations and views about financial issues.

In Minnesota, to enter into a valid and enforceable prenuptial agreement, you must sign a written agreement before two witnesses and a notary public before you are married. The agreement must include a full disclosure of each person’s income and property and a statement that each has had an opportunity to consult with legal counsel of their choice before signing the agreement. The better practice is to enter into such an agreement well before the wedding date so each of you has an opportunity to consult with their own attorney.

The issues which are most often addressed in prenuptial agreements are deciding how property and debts existing at the time of marriage and acquired during the marriage will be divided in the event of divorce. Some agreements address whether there will be spousal support (alimony) awarded in a divorce and how much will be awarded. These agreements are generally enforced by Minnesota courts unless there are extreme inequities resulting from enforcement at the time of the divorce.

Agreements on child custody and child support are not enforceable as part of prenuptial agreements in Minnesota. The court in a divorce examines the best interests of the children at the time of the divorce in deciding who should have custody, what the parenting time should be, and how much child support should be paid.

Couples who have acquired substantial assets before the marriage, who have been married before and have children, or who want to preserve their estate plans for their adult children from previous marriages, enter into prenuptial agreements to ensure that their goals and financial expectations are followed in the event of a divorce. These are not the only couples who may need prenuptial agreements.

For example, with the recent legalization of same-sex marriages in Minnesota, some-same sex couples contemplating marriage may need to consult with legal counsel to learn the differences in how their income and property will be treated once married under Minnesota law and whether a prenuptial agreement may be appropriate.

Professionals are available for consultations on these issues. The collaborative process gives couples (not the court) the power to shape their future financial destiny. The collaborative process also ensures that the needs and interests of each person are addressed, with full disclosure of financial information, advocacy for each person and neutral professional financial and other advice. Making sure each of you have the information you need is what love has to do with it.

Linda OjalaABOUT THE AUTHOR
Linda Ojala
Attorney, Baker Vicchiollo Law

Linda Ojala, J.D. has been practicing collaborative divorce since 1993 and believes that most people want to avoid court and make their own decisions about their future. As a Financial Early Neutral Evaluator for Hennepin County Family Court since 2007, she has helped couples make realistic assessments of possible outcomes in court. Learn more at www.TwinCitiesFamilyLawAttorney.com

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One Response to Why Prenuptial Agreements?

  1. Emily Murphy says:

    Prenups also give a chance for marrying people to examine the law regarding what happens to their finances and property now and during their marriage. We give little to no thought to these issues prior to marriage. Once upon a time when people were married young and without assets, this was understandable. As people now wait to marry until later in life, or re-marry, it is imperative that we look at how we want our marriage to impact our financial future. Wonderful, Linda!

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