Fill and Sign the Model Agreements Form

Instruction: This is a model letter. Adapt to fit your facts and circumstances. __________ , 20 ___ PERSONAL & CONFIDENTIAL Re: ___________ ___________ ___________ ___________ Dear ___________ ___________ ___________ ___________ You have requested that we advise you with respect to a proposed ante-nuptial agreement to be negotiated in anticipation of your upcoming marriage to ________ (hereinafter " ________ "). In the typical case, the agreement would reflect that independent counsel with respect to certain matters has advised the parties. In general, those matters include the rights, which you would have, in the absence of the Antenuptial Agreement, in the event of your marriage to ________ and her/his subsequent death prior to yours, your rights during the marriage, and your rights in the event of termination of the marriage other than by death. I. Rights under       Law in the Event of Marriage and Her/His Subsequent Death . Instruction: This form was originally designed for Minnesota, and covers relevant issues in detail. Using this letter as a model, you must insert the appropriate law from your state on the same issues. Under the laws of Minnesota, in the event of your marriage to ________ and her/his subsequent death, your rights, in the absence of the Antenuptial Agreement, would be as follows: A. Under Minnesota Statues, 525.145, if ________ owned your homestead at her/his death you would be entitled to the homestead outright if ________ had no surviving child or issue of any deceased child, or a life estate in the homestead if ________ were survived by a child or children or issue of a deceased child or children. B. Under Minnesota Statutes, 525.15, you would be allowed, from the personal property of which ________ was possessed or to which she/he was entitled at the time of her/his death, her/his wearing apparel and furniture and household goods selected by you not exceeding $6,000 in value. If, except for one automobile, all of ________ 's personal estate were allowed to you under the foregoing provisions, then you would also be allowed such automobile. C. Under Minnesota Statutes, 525.15, you also would be entitled, during administration, to a reasonable maintenance allowance. D. Under Minnesota Statutes, 524.2-101, if ________ dies intestate (without a will), ________ 's estate, real and personal (subject to your interest in the homestead under 524.145, the allowances provided in 525.15, and the payment of the expenses of administration, funeral expenses, expenses of last illness, taxes and debts), would be distributed as follows: (1) if there are no surviving issue of ________ , her/his entire estate would pass to you; (2) if there are surviving issue of ________ all of whom are also issue of yours, you will receive the first $70,000 of ________ 's intestate estate plus one-half (1/2) of the balance; (3) if there are surviving issue of ________ who are not issue of yours, you will be entitled to one-half (1/2) of the intestate estate. E. If ________ dies testate (with a will), under Minnesota Statutes, 524.2-201 through 524.2-207, you are granted the right of election to take an elective share of one-third (1/3) of ________ 's "augmented estate." The augmented estate is the estate: (1) reduced by funeral and administration expenses, the homestead, family allowances and exemptions, liens, mortgages and enforceable claims, and (2) increased by gifts made by ________ where she/he retained (a) the right to enjoy the property or income from the property, (b) a power to revoke or consume the property, (c) right of survivorship, and (d) any transfers within one year of death to the extent transfers exceed $30,000 to any one donee, and (3) also increased by the value of property owned by you and/or any property transferred by you, to the extent the owned or transferred property is derived from ________ . If ________ is not domiciled in this state, your right to take an elective share is governed by the law of ________ 's domicile. II. Rights During the Marriage under Minnesota Law . Under the laws of Minnesota, in the event of your marriage to ________ , your rights during the marriage, in the absence of the Antenuptial Agreement, would be governed primarily under the provisions of Chapter 519 of the Minnesota Statutes. By the specific provisions - 2 - of Minnesota Statutes, 519.11, Subd. 7, the provisions in that chapter are not to be construed as affecting antenuptial contracts or settlements. In the absence of any such antenuptial contract or settlement, the pertinent provisions of that chapter would be as follows: A. Under Minnesota Statutes, 519.02, all property, real, personal and mixed, and all closes in action, owned by any woman at the time of her marriage, continues to be her separate property after marriage. Any married woman continues to be entitled to receive, acquire and enjoy property of every description, and the rents, issues and profits thereof, and all avails of her contracts and industry, free from the control of her husband, and from any liability on account of her debts, as fully as if she were unmarried. B. Under Minnesota States, 519.05, it is specifically provided that a spouse shall not be liable for any debts of his or her spouse, except for necessities furnished to a spouse after marriage, where he or she/he would be liable at common law. That section further provides that where the husband and wife are living together, they are jointly and severally liable for all necessary household articles and supplies furnished to and used by the family. C. Under Minnesota Statutes, 519.07, provision is made for initiation of judicial proceedings, in the event that either spouse is deserted by the other for the space of one year, to debar the deserting spouse's interest in or to the deserted spouse's property. Upon completion of the necessary judicial proceeding, the deserted spouse would have full control over and full authority to convey her/his or her/his property. D. Under Minnesota Statutes 519.09, all inchoate estates or statutory interests in lieu of dower and courtesy in all lands in Minnesota conveyed prior to January 1, 1960, by the husband or wife of the one entitled to such inchoate dower or courtesy, or statutory interest, by a conveyance in writing, are abolished. III. Rights in the Event of Termination of Marriage Other Than by Death. Under the laws of Minnesota, in the event of your marriage to ________ and the subsequent termination of the marriage other than by death, your rights would be governed by the provisions of Chapter 518 of the Minnesota Statutes. A. Under Minnesota Statutes, 518.14, in any proceeding brought for dissolution of marriage or legal separation, the court, from time to time, after considering the financial resources of both parties, may require one party to pay a reasonable amount necessary to enable the other spouse to carry on, or to contest the proceeding, and to pay attorney's fees. The court may adjudge costs and disbursements against either party. B. Under Minnesota Statues, 518.17, the court upon adjudging dissolution of the marriage or separation, may make such further order as it deems just and proper concerning the care, custody and maintenance of minor children of the parties giving consideration to the factors set out in 518.17. The court may order either or both parents to pay a reasonable or necessary amount for support. C. Minnesota Statutes, 518.54, Subd. 5, defines "marital property" to include property, real or personal, including vested pension benefits or rights, acquired by the parties, or - 3 - either of them, or at any time during which the parties were living together as husband and wife under a purported marriage relationship which is later annulled. All property acquired by either spouse subsequent to the marriage and before a decree of legal separation is presumed to be marital property regardless of whether title is held individually or by the spouses in a form of co- ownership, such as joint tenancy, tenancy in common, tenancy by the entirety, or community property. The presumption of marital property is overcome by a showing that the property is of a type listed in clauses (a) to (e) below. By statute, "non-marital property" includes property, real or personal, acquired by either spouse before, during or after the existence of their marriage, which (a) is acquired as a gift, bequest, devise or inheritance made by a third party to one but not to the other spouse; (b) is acquired before the marriage; (c) is acquired in exchange for or is the increase in value of property which is described in clauses (a), (b), (d), and (e); (d) is acquired by a spouse after a decree of legal separation; or (e) is excluded by a valid antenuptial contract (emphasis supplied). D. Under Minnesota Statutes, 518.55, the court is authorized to determine, as one of the issues of the case, whether or not either spouse is entitled to an award of maintenance notwithstanding that no award is then made, or it may reserve jurisdiction of the issue of maintenance for determination at a later date. E. Under Minnesota Statutes, 518.57, upon decree of dissolution, legal separation or annulment, the court may make such further order as it deems just and property concerning the maintenance of minor or dependent children. F. Under Minnesota Statutes, 518.58, upon dissolution of the marriage, the court is required to make a just and equitable disposition of the marital property of the parties without regard to marital misconduct, after making findings regarding the disposition of the property. The court is to base its findings on all relevant factors including the length of the marriage, any prior marriage of a party, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate liabilities, needs and opportunities for future acquisition of capital assets, the amount of support, maintenance and income of each party, whether the property award is in lieu of or in addition to maintenance or support. The court shall also consider the contribution of each in the acquisition, preservation, depreciation or appreciation in the amount or value of the marital property, as well as the contribution of a spouse as a homemaker. It is presumed that each spouse made a substantial contribution to the acquisition of income and property while they were living together as husband and wife. The court may also award to either spouse the household goods and furniture of the parties, whether or not acquired during the marriage. If the court finds that either spouse's resources or property, including his or her - 4 - portion of the marital property as defined in Minnesota Statutes, 518.54, Subd. 5, are so inadequate as to work an unfair hardship, considering all relevant circumstances, the court may, in addition to the marital property, apportion up to one-half (1/2) of the property otherwise excluded under Minnesota Statutes, 518.54, Subd. 5, clauses (a) to (d), to prevent the unfair hardship. If the court apportions property other than the marital property, it is required to make findings in support of the apportionment. The length of the marriage, any prior marriage of a party, the age health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, needs and opportunity for future acquisition of capital assets and income of each party. It is important to note that property described under Minnesota Statues, 518.54, Subd. 5, clause (3) --property excluded by an antenuptial agreement--apparently may not be awarded by the court in the case of unfair hardship. If the court finds that it is necessary to preserve the marital assets of the parties, the court may order the sale of the homestead of the parties or the sale of other marital assets, as the circumstances may require, during the pendency of the proceeding, and may further provide for the disposition of the funds received from the sale. IV. Minnesota Law Affecting Antenuptial Contracts . Section 519.11 of the Minnesota Statutes deals specifically with antenuptial contracts. Section 519.11, Subd.1, provides that a man and woman of legal age may enter into an antenuptial contract or settlement prior to solemnization of marriage which shall be valid and enforceable if (a) there is a full and fair disclosure of the earnings and property of each party; and (b) the parties have had an opportunity to consult with legal counsel of their own choice. Further, it provides that an antenuptial contract or settlement made in conformity with this section may determine what rights each party has in the non-marital property, defined in Minnesota Statutes, 518.54, Subd. 5, clauses (a) through (d), upon dissolution of marriage, legal separation or after its dissolution of marriage, legal separation or after its termination by death and may bar each other of all rights in the respective estates not so secured by them by their agreement. Section 519.11, Subd. 2, provides that antenuptial contracts or settlements must be in writing, executed in the presence of two witnesses and acknowledged by the parties, executing the same under the laws of this state. It also provides that the agreement must be entered into and executed prior to the day of solemnization of marriage. Section 519.11, Subd. 3, provides that an antenuptial contract or settlement which by its terms conveys or determines what rights each has in the other's real property and sets forth the legal description of the real estate granted or affected by the agreement may be filed or recorded in every county where any real estate so described is situated, in the office of the county recorder for the county or in any public office authorized to receive a deed, assignment or other instrument affecting the real estate, for filing or recording. Section 519.11, Subd. 4, provides that any antenuptial contract or settlement not recorded in the office of the county recorder or other public office authorized to receive the document, where - 5 - the real property is located, shall be void as against any subsequent purchaser in good faith and for a valuable consideration of the same real property, or any part thereof, whose conveyance is first duly recorded and as against any attachment levied thereon or any judgment lawfully obtained at the suit of any party against the person in whose name the title to the property appears of record prior to recording the conveyance. Section 519.11, Subd. 5, provides that an antenuptial contract or settlement duly acknowledged and attested shall be prima facie proof o the matters acknowledged therein and as to those matters, the burden of proof shall be upon the person contesting the same. Subdivision 7, as has been previously indicated in this letter, provides that nothing in Minnesota Statutes, 519.01 and 519.101, shall be construed to affect antenuptial contracts or settlements. There has been a controversy under current Minnesota law as to the effectiveness of provisions of an antenuptial agreement which determine what rights each party has in marital property, defined in Minnesota Statutes, 518.54, Subd. 5. The statutory provisions relating to antenuptial agreements expressly provide that Minnesota Statues 519.11 shall not be construed to make invalid or unenforceable any antenuptial agreement or settlement made and executed in conformity with this section because the agreement or settlement covers or includes marital property, if the agreement or settlement would be valid and enforceable without regard to the section. Moreover, Minnesota Statues 518.54, Subd. 5, clause (3), states that property excluded by a valid antenuptial contract (presumably including property which otherwise would be treated as marital property) shall be treated as non-marital property. On October 4, 1988, the Minnesota Court of Appeals held in a controversial decision that Minnesota Statutes 519.11 prevented prospective spouses from contracting with respect to their marital property, and that the provisions of an antenuptial agreement executed on or after August 1, 1979, dealing with the disposition of marital property in the event of a dissolution of the marriage are unenforceable. McKee-Johnson v. Johnson , 429 N.W. 2d 689 (Minn. Ct. App., October 4, 1988). This decision was in our view, at odds with previous Minnesota common law, and not particularly well reasoned. The Minnesota Supreme Court has recently overturned the Court of Appeals decision. McKee-Johnson v. Johnson , 444 N.W. 2d 259 (Minn. Sup. Ct., August 18, 1989). In its decision, however, the Supreme Court introduced a procedural fairness, which is to be administered to an antenuptial agreement at the time of enforcement. Thus, to be effective, such an agreement needs to be fair at the time it is impossible to determine at the time of execution whether an agreement will be able to meet the substantive fairness test when it is enforced. Thus, there will always be some risk that an antenuptial agreement may not pass the substantive fairness test introduced by the Minnesota Supreme Court. - 6 - After you have reviewed the provisions of this letter, I will be available to discuss any questions you may have concerning the above. Yours truly, _________________ Attorney at Law - 7 -