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Any ideas for prenup clauses to discourage fighting at a future divorce?

I've got so far:

  • Binding mediation & arbitration
  • Fees (attorney, court, etc.) awarded to opposite party for refusing mediation, not participating in mediation, or for disproven or highly unlikely accusations
  • Otherwise each party pays own attorney fees and mediation, arbitration, and court fees are split.

Any other ideas?

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    Don't get entangled with lawyer issues in your prenup, since they will find a way to drag your court proceedings anyway and prolong litigation for as long as you have any money left in your bank account. Instead, I strongly encourage you to do research on divorce & custody law, and then enter a prenup with a clause to the effect of barring attorneys altogether if divorce or any dispute arises. See this report and don't become their next target. – Iñaki Viggers Feb 27 '20 at 23:50
  • If there are children and you wind up in court you may need professional advice. I believe Mr. Viggers has fought and, sometimes for unfortunate reasons, lost multiple court cases representing himself. I agree with doing research in divorce and custody law and would add doing research in prenups that turn out to be helpful. – George White Feb 28 '20 at 0:40
  • Any suggestions on how an average person would do more research? Every template I've seen is pretty similar to each other and all of them see way to focused on "what each spouse earned and kept is theirs" type language. I actually agree with ~80% of what my states default views are, but the other 20% of errors in logic, errors in basic financial literacy, and the degree by which the system rewards viciousness are all items I want to improve upon. – Engaged Guy Feb 28 '20 at 1:08
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Any ideas for prenup clauses to discourage fighting at a future divorce?

To make this answer self-contained, allow me to restate my comment (especially since it is uncomfortable to some who might seek to have it removed):

Don't get entangled with lawyer issues in your prenup. They will find a way to overcome it, drag your court proceedings anyway, and prolong litigation for as long as you have any money left in your bank account.

Instead, I strongly encourage you to do research on divorce & custody law, and then enter a prenup with a clause to the effect of barring attorneys altogether if divorce or any dispute arises. See this report and don't become their next target.

That being said, now I address your follow up question:

Any suggestions on how an average person would do more research?

What follows is one sketch on how to get started. In assessing how much this approach makes sense to you, consider two preliminary remarks:

  • I am not knowledgeable of family law. This means that prior to drafting this answer I had (and have) essentially the same starting point you do.

  • What I have is litigation experience and legal research skills, so don't be discouraged or intimidated if you initially think some resources or ideas would not have occurred to you on your own. Sooner or later you would have gotten to these sources as well, and I only intend to obviate the time gaps it may take for an inexperienced person to identify the legal aspects you need to know.

With your follow up question in mind, I went to leagle.com, entered "prenuptial agreement" in field "This Exact Phrase", selected Minnesota in "Search By Court", and clicked on Search. The search brought 8 results.

Only one of the 8 cases was released by the Supreme Court [of Minnesota], McKee-Johnson v. Johnson, 444 N.W.2d 259 (1989). The other 7 are from the Court of Appeals some of which constitute legal precedent (the rest do not, but one could still gain useful knowledge from there and find additional case law cited therein).

I started reading the opinion/precedent McKee-Johnson. There I learned, at the outset, that another term for prenuptial agreement is antenuptial agreement. This is relevant because then I conducted another search, now for "antenuptial agreement", which brought 58 cases. Many of these are more recent than, although not necessarily in conflict with, the McKee-Johnson decision. My point is that it is in one's best interest to try different search terms.

The McKee-Johnson opinion discusses, inter alia, the validity and enforceability of a prenuptial agreement. The opinion makes reference to Minn.Stat. 519.11. A search for that statute took me to chapters 517-519A of the [current] [Minnesota Statutes]7. I am not reading the MN statutes, but you should in order to ensure the terms and circumstances of your prenuptial agreement are compliant with statutory law.

The McKee-Johnson opinion ascertains the legislative history & intent of the aforementioned statute, which the lower courts had considered ambiguous. A review of the legislative history led the court to the conclusion that the statute sought to encompass also marital property, not just nonmarital property. See McKee-Johnson at 264-265:

We find nothing in the legislative history which indicates that the statute was hostile towards agreements which contained provisions relative to the disposition of marital property.

[...]

We find nothing in the legislative history which justifies the conclusion that the legislature harbored hostility toward the inclusion of provisions respecting disposition of marital property in pre-marital contracts, or that such provisions are void or unenforceable. To the

[265]

contrary, the statute recognizes the validity of such a contract so long as it "would be valid and enforceable without regard to this section."

Please note that I am not reading the entire opinion, but you are encouraged to do so (since you are the one getting married and also because you might not be familiar with most of the general principles/doctrines involved). This will make you acquainted with concepts of law. If the meaning of a term is unclear to you, you can consult the Black's Law Dictionary or search for case law that uses that term.

Although McKee-Johnson nowhere mentions the Restatement (Second) of Contracts, there is an important overlap insofar as a prenuptial agreement is a contract. For instance, McKee-Johnson touches on wife Mary's repeated refusal to obtain legal information separately from husband Lance. These refusals amount to Mary's bearing the risk of a mistake as defined in the Restatement at § 154, which has legal implications regarding the procedural fairness discussed in McKee-Johnson*.

Additionally, you might want to visit the court in your location and search for divorce cases. Some of these might have exhibits with the parties' prenuptial agreement. Those documents might give you some ideas on the format and wording of an agreement. However, it is utmost important to ensure you understand the terms of those agreements and that they look acceptable to you if you are considering to adopt them.

At first glance, this learning process might seem a titanic task. To a great extent it is. But you have the advantage that you don't have an immediate need for litigation, whence it is safe for you to postpone for now anything that has to do with procedural law (motion practice, admissibility of evidence, and so forth). By contrast, some of us have had to learn both substantive and procedural law at once in order to pursue in court a remedy for the wrongs made to us.

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    A really key point is that prenuptial agreements are not valid with respect to anything related to child custody, parental responsibilities, or child support, from a legal theory perspective, because the children are not parties to the agreement. You cannot have binding arbitration for these matters. – ohwilleke Mar 30 '20 at 3:44

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