• June 4, 2018

Update (June 4, 2018): ATTENTION 2018 WEDDING PARTICIPANTS: Sneaking off to a lawyer repeatedly before the wedding day and then confronting your fiancé with a “prenup” while guests are en route to your destination wedding will likely not fly in Minnesota.

To go all legal on you: In the Kremer v. Kremer case, discussed below after the court of appeals’ decision over a year ago, the Minnesota Supreme Court released its opinion last week on the relationship between Minn. Stat. 519.11, a Minnesota statute governing antenuptial agreements, and the common law as applied to antenuptial agreements that address both marital and nonmarital property and were executed after August 1, 1979 (that is, the effective date of the statute).

The Minnesota Supreme Court teaches us that the statute, Minn. Stat. 519.11, only covers non-marital property. “The only reasonable interpretation of [the statute] is that the validity of provisions regarding marital property remain [sic] governed by the common law.”

The Supreme Court goes on to analyze whether the antenuptial agreement at issue in the Kremer case concerned marital or non-marital property. The majority of the court found that the agreement, by referring simply to “property” in a key clause supposedly “ma[de] it difficult for [the Supreme Court] to tell whether [the Agreement’s] provisions purport to distribute nonmarital property.” Opinion at p.16. Based on this determination, the Court went on to evaluate whether the Kremers’ antenuptial agreement met the common law requirements of “procedural fairness,” that is, whether it was “equitably and fairly made.” (Of course, it was not, as the trial court, the court of appeals, and the Supreme Court all found.)

Justice G. Barry Anderson, dissenting, would have reversed the court of appeals decision and held that the Kremer antenuptial agreement met the statute’s procedural fairness “safe harbor” ( “full and fair disclosure of the earnings and property of each party, and the parties have had an opportunity to consult with legal counsel of their own choice”) (which the Kremer antenuptial agreement apparently did).

Original post (January 23, 2017): In 1979, Dustin Hoffman and Meryl Streep starred as a divorcing couple in Kramer vs. Kramer, the heart-rending story of a custody battle. The recent Minnesota case of Kremer vs. Kremer, in contrast, is about mere money.

If you are married, think back to those exciting days just before your wedding — the catering crisis averted, the anxiety over whether the crazy relatives (or exes) will show up, the quiet dreamy unreality of the minutes and hours before one of your life’s most momentous events…

Did you have a “destination wedding”? If so, maybe many of those hours were spent stressing out over weather reports, logistics, and coordinating travel schedules and other details?

But if you were Michelle Beth Kremer in March, 2001, I suspect the antenuptial agreement that your fiancé handed to you three days before your destination wedding in the Grand Cayman Islands (several friends and family already en route) was particularly memorable.

Talk about a buzzkill!

Seriously, Mr. Kremer? Not huge on sentimentality, I guess.

Earlier this month, the Minnesota Court of Appeals affirmed the trial court’s determination that the “lack of procedural fairness [was] fatal to the validity of the … the antenuptial agreement.”

I do not practice “family law” (which, from my remote vantage point, seems like an oxymoron) so it comes as something of a surprise to me that this published Court of Appeals decision is controversial, but, apparently, it is.

The battle, in essence, between the majority opinion and the dissent is whether the Minnesota antenuptial agreement statute’s definition of “procedural fairness,” less stringent than the same concept under common law, entirely displaces the preexisting common law. Under the statutory definition, Mr. Kremer’s eleventh hour surprise passes muster but not under the common law.

Minnesota Court of Appeals Judge Carol Hooten dissented from the majority opinion:

[T]he majority’s decision ignores the plain language of Minn. Stat. § 519.11 (2016) and applies a standard that creates a level of uncertainty that is contrary to Minnesota’s long history of public policy favoring the validity of antenuptial agreements…

Amy Joyce, a named partner at Skolnick & Joyce, P.A. ((612) 677-7600), who practices in the areas of family law and business (or civil ) litigation agrees with the dissent:

I think the decision by the Court of Appeals is troubling because it creates more confusion regarding interpretation of the antenuptial statute and common law.  I am hopeful that the decision will be appealed to the Supreme Court that that there will be clarity as a result.



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