Kremer Decision: Procedural Fairness and Minnesota Antenuptial Agreements
PROCEDURAL REQUIREMENTS:
Currently governed by Minnesota Statute 519.11, antenuptial agreements require procedural fairness in order to be enforced. The first of these requirements includes full and fair disclosure of the parties’ earnings and property. Next, the parties must have the opportunity to consult with legal counsel of their own choice. The agreement must be in writing and executed in the presence of two witnesses and a notary. Finally, the agreement must be entered into and executed before the day of solemnization of the marriage.
Each of these requirements must adhere to strict compliance; failure to do so would risk invalidation of the agreement. The validity of such antenuptial agreements is a question of law subject to de novo review under Pollock-Halvarson v. McGuire.
ADEQUATE TIMING & DURESS:
Following a period of cohabitation, the parties in Kremer v. Kremer agreed to get married like many other couples choose to do. However, nearly one year into the engagement and just two short weeks prior to their destination wedding in the Cayman Islands, husband presented a signed antenuptial agreement to wife. Upon delivery of this agreement, husband made very clear that without her signature, there would be no wedding. Many friends and family had already booked lodging, travel, while some had already embarked on their travels.
After failed attempts to secure a meeting with her attorney, wife consulted with an attorney who reviewed the agreement, and she signed the document. At the time of signing, the parties were merely a day from boarding a plane to the Cayman Islands for their wedding, and less than one week later, the parties would be married. The state Supreme Court is now faced with the determination of the wife’s duress at the time that the antenuptial agreement was enacted. Similarly, in Siewert v. Siewart the parties signed the antenuptial agreement just four days prior to their marriage.
The question remains: How much time is truly required to remove the duress aspect of the signing of an antenuptial agreement?
‘SUFFICIENT’ LEGAL COUNSEL:
The task of finding a lawyer to assist in understanding and negotiating an antenuptial agreement can add an additional layer to the question of duress on the receiving party. Thus, it is pivotal that we fully understand what the statutory language is asking of the parties. Wife in the current Kremer case argued that although she was about to speak with counsel, it does not satisfy the procedural requirement under the statute because time was insufficient for her to understand the agreement.
In Kremer, wife met with an attorney just two days after receiving the antenuptial agreement from husband. The same day, she also found an attorney to meet with, signed the agreement, and returned the agreement to husband. The two then left for their destination wedding the next day.
If the court simply reads the plain language meaning of 519.11, it may be possible to determine that this meeting fulfilled the opportunity to meet with counsel, but was it truly enough? The Minnesota Court of Appeals found that “the opportunity to consult with independent counsel is a relevant factor in the analysis, but it is not a requirement for a valid antenuptial agreement under common law” In re Estate of Kinney. However, the Court of Appeals in Kramer determined that wife did not have meaningful opportunity to consult counsel of her choice.
COMMON LAW – SAVINGS CLAUSE:
As addressed in the dissent of Kremer, Minnesota Appellate Justice Hooten argued that the third sentence of Minn. Stat. § 519.11, subd. 1 acts as a “saving clause,” which would validate the Kremer agreement. The majority opinion, however, failed to find this view compelling. This clause would serve to validate those that fail common law through statutory language, and also validate those that fail statutory requirements through common law. Citing to McKee-Johnson the court ultimately chose to use common law as “guidance” regarding the issue of validity.
As this case now awaits the state Supreme Court’s decision, family law attorneys must look to the future of antenuptial agreements with a wide lens. If the Supreme Court follows the view of the dissent, how will Minnesota antenuptial agreements be written to ensure a just and equitable outcome?
FUTURE OF MINNESOTA ANTENUPTIAL AGREEMENTS:
In order to avoid the duress aspect of procedural fairness within timing in Minnesota Antenuptial Agreements, it is critical that legislative action be taken to resolve the ambiguity within time of execution and solemnization of the wedding. A clean and clear plan on timing can avoid the majority of antenuptial agreements from being signed with haste. Parties should be entitled to time between the presentation of the original draft, obtaining legal representation, review and negotiation of agreement terms, signing the contract and the execution of the wedding. It would be impractical to think this could all be adequately performed within a week, let alone a few days.
Finally, the opportunity to consult legal representation poses multiple issues when examining the words in their plain meaning. The “opportunity” fails to give teeth to the matter. Signing parties need access to counsel of their choosing. This requires the party to have the financial ability to retain a lawyer, or the requesting party need pay all reasonable fees and expenses of representation.
Adoption of UPC guided antenuptial and postnuptial agreements continues to be a topic of interest for the state of Minnesota in anticipation of the final decision of the Kremer case. This case has the potential to change the way counsel and members of our judicial committees analyze antenuptial agreements yet to be written.
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