Case Update (3 April 2023): Rzeczkowski v. Borrero; Colombian notary is different than a U.S. notary, and two prenuptial "agreements" signed in Colombia are subject to recognition as a matter of comity if they do not violate public policy

The parties met, began dating, and moved to Colombia, where the Wife lived.  The Wife was a successful executive, but the Husband, despite having an Executive MBA, was not employed, waiting for the perfect job in start-ups to come along.  When they got engaged, they decided to enter into several agreements, provided for under Colombian law, to keep their assets separate from one another.  The first of these, the "prenuptial agreement," was entered into on September 30, 2011. They married the next day.  They also executed a Dissolution and Liquidation of Marital Partnership Agreement (DLMP) two days after their wedding.  In 2013, the couple moved to the United States. They consulted a New York attorney before the move to inquire as to the enforceability of their two agreements. The parties lived in NY and then Atlanta, with the Wife moving jobs, but the Husband never really finding sustainable or consistently paid work.  While in Atlanta, they had a twins.  The parties’ home and car were titled in the Wife’s name, and she consistently earned substantial income throughout their marriage.  In September 2019, the Husband petitioned for dissolution of their marriage (in Minnesota, where they were then residing). A temporary order required the Wife to pay $2500/month in support and certain delineated expenses.  The Wife sought to enforce the 2 Colombian agreements, and the Husband sought to set them aside/declare them invalid.  The trial judge, treating the 2 agreements as “judgments” recognized them as a matter of comity, and stated that, in the alternative, if they were to be treated as contracts, they would still be enforceable. The Husband appealed, arguing: (1) the documents were contracts, not judgments, (2) the DLMP was not properly executed and is invalid under Colombian law, (3) he was fraudulently induced to sign the DLMP in Spanish (which he does not speak, and for which he was not offered a translator, as required in Colombia), (4) the documents could not be enforced as a matter of comity, as doing so violates Minnesota's public policy of not rendering a divorced spouse a public charge.

The court concluded that the DLMP was not just a contract and under Colombian law was recorded in a public deed, and therefore comity is applicable. Notaries in Colombia are different than in the United States.  They are empowered to authorize acts with declarations that constitute judicial situations.  Marriages in Colombia can be dissolved by agreement before a notary.  It further concluded that it had sufficient evidence that the Husband was not fraudulently induced and was offered a translator.  Finally, the agreements are not unenforceable based on Minnesota public policy as the Husband was sufficiently capable of obtaining employment and supporting himself.

The appellate court addressed one more issue related to the contracts, which is an issue not addressed by the trial court – whether the terms in the DLMP were unconscionable.  The appellate court concluded that a postnuptial agreement, under Minnesota law, must be both procedurally and substantively fair and equitable. Since the trial court did not examine this issue, the appellate court is remanding for it to do so. This opinion is non-precedential.