USA – MINNESOTA Trends and Developments Contributed by: Lisa Spencer and Sarah Hewitt, Henson Efron
ties may be surprised to learn that the same lawyer cannot represent both halves of the couple, or that detailed financial disclosures are necessary before signing the agreement. A properly drafted prenuptial agreement must be tai - lored to account for the specific goals, circumstances and intentions of the parties getting married. Wheth - er an attorney is creating a first draft or reviewing a draft, the process will require in-depth conversations with the client. A good attorney will make sure the client understands what their rights would be with - out a prenuptial agreement and how the terms of the agreement alter those rights. Experienced attorneys can offer suggestions to strengthen the terms of an agreement or to address unique circumstances. To date, there are no legal decisions addressing the enforceability of an AI-drafted prenup. Those who use AI as a substitute for a lawyer run the risks of unin - tended consequences, invalid provisions and fatal flaws that may render their prenups unenforceable. A cheap prenup may turn into an expensive lesson. What could go wrong? Couples who sign a prenuptial agreement are not guaranteed a simple, hassle-free divorce. Either spouse can challenge a prenuptial agreement and ask the divorce court to find it unenforceable. The law governing enforceability of prenuptial agree - ments constantly evolves based on legislative chang - es and court rulings. Perhaps judges will soon need to decide whether a relationship with an AI chatbot can violate an infidelity clause, or the extent to which a prenup can limit ex-spouses from posting about their marriage on social media. While most properly drafted prenuptial agreements are upheld, enforcement can - not be guaranteed, and there are situations in which an agreement is found unenforceable. In the US, prenuptial agreements are governed by state law, not federal law, meaning each state has its own rules and standards which judges must apply when one spouse challenges a prenup’s enforceabil - ity. While 26 states have adopted versions of the 1983 Uniform Premarital Agreements Act, and two states have adopted the updated 2012 Uniform Premarital
and Marital Agreements Act, each of the remaining 22 states has its own legal framework governing pre - nuptial agreements and those legal frameworks are nuanced. Some states’ laws are more pro-enforcement than others. Among the factors that may be weighed when a prenuptial agreement is challenged are: • Procedural issues – Did the spouses fully disclose their income and assets; were both parties given the opportunity to consult with legal counsel of their own choosing; was the agreement signed sufficiently in advance of the wedding; and was the document properly witnessed and notarised? • Fairness – In many states, an agreement that leaves one spouse with little or nothing risks a challenge to its enforceability. Some states consid - er only whether the agreement was fair at the time of signing, but a few states require a “second look” at whether enforcement of the agreement would be unfair or unreasonable at the time of enforce - ment. Although an agreement may be fair at the time it was signed, if at the time of divorce or death circumstances have changed so drastically that enforcement would be unconscionable, the court may declare the agreement unenforceable. Minnesota is one of the 22 states with its own frame - work governing the interpretation and enforceability of prenuptial agreements, as opposed to adopting a uniform law. In 2024, the state legislature approved changes to Minnesota Statutes Section 519.11, regarding prenuptial and postnuptial agreements, to address confusion that arose following the Minnesota Supreme Court’s decision in Kremer v Kremer , spe - cifically to eliminate the dual-track analysis for marital and non-marital property that the Kremer case argu - ably created. In addition, the changes to the statute, which apply to agreements signed on or after 1 August 2024, better clarify the procedural requirements and fairness standards Minnesota courts must apply when deciding whether to enforce a prenuptial agreement, including by: • defining what it means to provide “full and fair dis - closure” of a party’s current income and property;
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