We occasionally get asked about post nuptial agreements; an agreement between spouses who wish to stay married but separate their property rights. Post nuptial, like pre nuptial agreements, define property interests acquired by spouses during marriage.
Why would anyone need a post nuptial agreement? In some cases, married couples acquire property rights (inheritance, gift, business formation/dissolution) that both sides agree they do not want to share ownership of.
Normally, a property right acquired by a spouse after marriage, is presumed to be ‘marital property’, that each spouse is deemed to have a common ownership interest in. Check out Minn. Stat. §518.003 subd. 3b for a better explanation.
However Minnesota law gives married couples the right (similar to unmarried persons contemplating marriage) to determine by agreement, the extent of their individual, respective property interests. That agreement is referred to as a post nuptial agreement and is defined by Minnesota law as an agreement which, among other things:
Elements of a Post-Nup
- Must be in writing, and signed by each spouse before a 2 witnesses and a notary
- Must Fully and fairly discloses the income of each party
- Acknowledge that each party consulted with and is represented by legal counsel of that party’s choosing
- Entered into it voluntarily and without duress
- Not enforced within 2 years of its execution
- Has not been altered by circumstances not reasonably foreseeable; and
- Is not so unfair so as to be ‘unconscionable’.
In a well known decision, the Minnesota Supreme Court decided in 2018 that a pre nuptial agreement can be rejected by a court if the agreement lacks “substantive and procedural fairness”. See Kremer v. Kremer, 912 N.W.2d 617, 626 (Minn. 2018). Following Kremer, Minnesota lawmakers in 2024 revamped the laws that apply to pre and post nuptial contracts, to make more clear what procedural and substantive fairness actually mean. Provisions were added to the law, which now defines substantive and procedural fairness. Those provisions are summarized in our list above.
This added language should not discourage married couples from making post-nups, if they recognize the benefits of creating separate property interests while married. The new language should have the effect of making it easier to draft an enforceable post nup.
But this language does not make post nups immune from judicial review either. A court can, and will, overrule a post nup, if it is determined to be so one-sided as to be ‘unconscionable’. Meaning, the contract is so one-sided as to “shock the conscience”. Minnesota courts have long recognized clear policy against enforcing unconscionable contracts. But courts have also acknowledged that an agreement is not unconscionable just because it’s a ‘bad bargain’ or disproportionately favors one party. Whether an agreement is ‘unconscionable’, or simply a ‘bad bargain’ is not always easy to predict.
When entering into a post nuptial contract, having a clear understanding what is needed for ‘procedural fairness’ and ‘substantive fairness’ should not be difficult to grasp. Understanding whether a court may construe an agreement as ‘unconscionable’ however, is not so well-defined by the law. Thoughtful consideration and careful drafting should be exercised when contemplating a post nuptial agreement. For more information about post nups, please contact us!
1 This is a key difference between prenups and postnups; postnups require legal representation.
Meet Tim Simonson
Tim has been practicing for more than twenty (20) years now, He's handled divorce, child support, child custody, third party and grandparent rights, domestic abuse, parenting time, and many other areas of family law. He always enjoys the chance to meet people and see whether he can help find solutions to their legal problems.
Contact Beyer & Simonson
If you are facing divorce and any of the divorce-related issues such as spousal maintenance, child support, child custody, property division, or domestic abuse matters, you need our experienced Minneapolis divorce attorneys to help you. Contact Beyer & Simonson in Edina, Minnesota today at (952) 303-6007.
