Following a marriage, spouses occasionally seek to enter into a post-nuptial agreement.  A post-nuptial agreement is an agreement which can establish the rights of the spouses in the event that the parties’ marriage is dissolved.  However, certain requirements are needed in order for a post-nuptial agreement to be considered valid in Minnesota.

The basic requirements for a valid post-nuptial agreement are described within Minnesota Statute § 519.11, subd. 1a.  First, post-nuptial agreements must comply with the requirements contained within subdivision 1, which are related to ante-nuptial agreements (or agreements entered into prior to the parties’ marriage).  To this end, there must be the following: (a) a full and fair disclosure of the earnings and the property of the parties; and (b) on opportunity to consult with independent legal counsel.  The agreement must also be procedurally and substantially fair and equitable both at the time of its execution and at the time of its enforcement.

Substantive fairness guards against misrepresentation, overreaching, and unconscionability.  An agreement may be substantively unfair if it is so one-sided that it results in an oppressive result for one party.  Conversely, procedural fairness refers to the disclosure of pertinent information and the access to legal counsel.  The following factors may be analyzed in determining whether an ante-nuptial agreement is fair and equitable: (1) whether there was a full and fair disclosure of the parties’ assets; (2) whether the agreement was supported by adequate consideration; (3) whether both parties had knowledge of the material provisions of the agreement and of how those provisions impacted the parties’ rights in the absence of an agreement; and (4) whether the agreement was procured by fraud, duress, or undue influence.

Secondly, a post-nuptial agreement cannot contain provisions related to the rights of the parties’ children to child support, the rights of the parents to child custody, or the rights of the parents to parenting time.

Moreover, in order to be valid, at the time that the post-nuptial agreement is executed, both parties must be represented by separate legal counsel.

It should be noted that a post-nuptial agreement will be presumed to be unenforceable if either party commences an action for legal separation or dissolution within two years of the date of its execution, unless the spouse seeking to enforce the post-nuptial agreement or settlement can establish that the post-nuptial agreement is fair and equitable.

Finally, a valid post-nuptial agreement must be in writing and be executed in the presence of two witnesses.  The witnesses must executed acknowledgements related to the witnessing of the execution of the post-nuptial agreement.

An individual who is either seeking a post-nuptial agreement or being asked to enter into a post-nuptial agreement should consult with independent legal counsel to discuss such an arrangement and to ensure the validity of any such arrangement.