Michelle Beth Kremer vs. Robbie Michael Kremer

For almost three years, Robbie and Michelle lived together as a couple on a farm in

Fulda, Minnesota. Robbie owned and operated a farming enterprise. Michelle had three

children from a previous marriage. Robbie told Michelle that he would require an

antenuptial agreement if they ever married. Michelle was ambivalent about such an

agreement, and the parties did not discuss or negotiate any terms.

In August 2000, Robbie and Michelle decided to marry. They scheduled a

destination wedding in the Cayman Islands for March 2001.

As the wedding approached, and without telling Michelle, Robbie contacted an

attorney to prepare an antenuptial agreement. Robbie had a minimum of six contacts with

the attorney over the course of at least a month. Without Michelle’s knowledge, he

furnished the attorney with copies of her tax returns.

On February 26, 2001, at his attorney’s office, Robbie signed the antenuptial

agreement (“the Agreement”). Later that day, he presented the Agreement to Michelle.

Robbie made clear that if Michelle did not sign the Agreement, the wedding was off. The

couple was scheduled to leave for the Cayman Islands just three days later. Family

members had paid for their lodging and airfare to the destination, and some were already

en route.

After being presented with the Agreement, Michelle attempted unsuccessfully to

meet with the attorney who represented her in a previous divorce. On February 28, she

met with a different attorney with whom she had no experience. The attorney explained

the terms of the Agreement, her rights under the law, and the potential impact of the

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Agreement upon dissolution of the marriage or Robbie’s death. After receiving legal

advice, Michelle signed the Agreement. The next day, the couple left for the Cayman

Islands to be married.

The Agreement specified that, upon dissolution, “[e]ach party shall retain his or her

Property free of any right or claim of the other.” Under the Agreement, “[a]ny assets

acquired during the marriage . . . [would be] divided between the parties in proportion to

the monetary consideration provided by each.” Under the Agreement, both parties

surrendered their rights to “alimony or maintenance.” The parties certified that they had

been advised of their rights and of the nature and probable value of each other’s property.

Robbie and Michelle had one child together, born in 2008. Over the course of the

marriage, Michelle contributed to the farming operation, the value of which increased

significantly. She did not herself earn much income.

The marriage did not endure. In 2010, Michelle petitioned for dissolution and

moved to set aside the Agreement, arguing that it was unfair. The district court agreed and

invalidated the Agreement. The court applied Minnesota Statutes § 519.11, which provides

that antenuptial agreements “shall be valid” if the parties satisfy two conditions—“(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.” Minn. Stat.

§ 519.11, subd. 1. The court concluded that the Agreement was procedurally unfair

because Michelle did not have an “adequate opportunity to meet with legal counsel of her

own choice.” The court found that Robbie intentionally “used the wedding deadline to

create an atmosphere of pressure” under which Michelle was “pressured/coerced” into

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signing the Agreement. The court also concluded that the Agreement was substantively

unfair at the time it was made and executed, but it did not conclude whether the Agreement

was substantively unfair at the time of its enforcement.

In a published opinion, the court of appeals affirmed the district court’s order

invalidating the Agreement, but on different grounds. Kremer v. Kremer, 889 N.W.2d 41

(Minn. App. 2017). The court of appeals concluded that, “to the extent that the district

court relied on [section 519.11] for evaluating procedural fairness, the district court erred.”

Id. at 50. The court of appeals determined that agreements that purport to distribute marital

property, such as the Agreement between Robbie and Michelle, must be evaluated under

the common law, regardless of whether they also address nonmarital property. Id. at 50

n.4. Applying the multifactor common-law test articulated in In re Estate of Kinney,

733 N.W.2d 118, to the findings of the district court, the court of appeals determined that

the Agreement was procedurally unfair. Kremer, 889 N.W.2d at 50–52. Because “a lack

of procedural fairness is fatal to the validity” of an antenuptial agreement, the court of

appeals did not address the issue of substantive fairness. Id. at 51–52.

One judge on the panel dissented in part, concluding that the statutory framework

applied by the district court was the appropriate standard. Id. at 56 (Hooten, J., dissenting

in part). But the dissent would have reversed the district court’s order invalidating the

Agreement on the theory that the statute’s procedural conditions were satisfied. Id. at 60.

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We granted Robbie’s petition for review to address the validity and enforceability

of the Agreement under Minn. Stat. § 519.11 and the common law.2

ANALYSIS

Antenuptial agreements must be fair, both procedurally and substantively. McKee

Johnson v. Johnson, 444 N.W.2d 259 (Minn. 1989). Two sources of Minnesota law govern

the procedural fairness of antenuptial agreements: section 519.11 and the common law.

This case requires us to determine which law governs antenuptial agreements that address

both marital and nonmarital property. Robbie also asks us to determine that the Agreement

was procedurally and substantively fair, and therefore valid and enforceable.

I.

In 1979, the Legislature enacted Minn. Stat. § 519.11, captioned “Antenuptial and

Postnuptial Contracts.” Previously, antenuptial agreements executed in Minnesota were

exclusively governed by the common law, which required such agreements to be both

procedurally and substantively fair. See Kinney, 733 N.W.2d at 122; McKee-Johnson,

444 N.W.2d at 265). The common-law standard for procedural fairness is whether an

agreement was “equitably and fairly made.” Kinney, 733 N.W.2d at 122. The

common-law standard for substantive fairness is whether an agreement’s terms are

unconscionable or oppressive. Id.; McKee-Johnson, 444 N.W.2d at 267.



2 The court of appeals also resolved issues regarding spousal maintenance, property division, and attorney fees, 889 N.W.2d at 52–56, but we did not grant review of these issues.

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Section 519.11 modified the common law of procedural fairness for antenuptial

agreements executed after August 1, 1979.3 See Minn. Stat. § 519.11, subd. 6; McKee

Johnson, 444 N.W.2d at 263. Subdivision 1 of the statute states that antenuptial

agreements “shall be valid” if the parties satisfy two conditions—“(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.” Minn. Stat. § 519.11,

subd. 1. The second sentence states that agreements “made in conformity with this section

may determine what rights each party has in the nonmarital property.” Id. (emphasis

added). The third sentence provides: “This section 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 this

section.” Id.

We first addressed section 519.11 in our 1989 decision, McKee-Johnson v. Johnson.

The primary issue in that case was whether the statute voided provisions of antenuptial

agreements purporting to distribute marital property. McKee-Johnson, 444 N.W.2d at 262.

In determining that section 519.11 did not void such provisions, we thoroughly reviewed

the statute’s legislative history, including statements made during committee discussions

and floor debates. McKee-Johnson, 444 N.W.2d at 263–64. We concluded that the



3 There is no dispute that section 519.11 addresses only procedural fairness, and that antenuptial agreements must also be substantively fair under the common law. See McKeeJohnson, 444 N.W.2d at 263.

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statute’s primary purpose was to codify the procedural fairness requirements for, and make

it more difficult to challenge, agreements about nonmarital property. Id. at 264. We

highlighted the fact that, during the legislative process, an amendment to address marital

property had been added but was later removed. Id. As the bill’s original sponsor

explained, the statute was “neutral” as to marital property. Id.

As to provisions in agreements that addressed marital property, we said that “we

must look to our common law for guidance.” Id. at 265. We equated the common-law

standard for procedural fairness with the standard (for nonmarital property) in the statute.

Id. (stating that the common-law factors for procedural fairness were “substantially

identical” to those in section 519.11, subdivision 1). Specifically, we said that “one

standard relative to the procedural fairness requirement is met whenever the proponent has

established that the parties have voluntarily contracted only after full financial disclosure,”

and “implicit in the procedural fairness analysis is the requirement that each party . . . has

unrestrained access to advice from independent counsel.” Id. at 265–66.

We modified the McKee-Johnson common-law standard in our 2007 decision, In re

Estate of Kinney. Unlike in McKee-Johnson, the agreement in Kinney was executed before

August 1, 1979, and thus was unquestionably subject to the common law. Kinney,

733 N.W.2d at 122. After a comprehensive review of our case law regarding procedural

fairness, we articulated a multifactor common-law balancing test different than the factors

we applied in McKee-Johnson. Id. at 124; see McKee-Johnson, 444 N.W.2d at 265–66.

And we disagreed with McKee-Johnson to the extent that, for procedural fairness, the

common-law test required the opportunity to consult with legal counsel. Kinney,

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733 N.W.2d at 125 (overruling McKee-Johnson and In re Estate of Serbus, 324 N.W.2d

381 (Minn. 1982), in part).

Since McKee-Johnson and Kinney, we have not considered the relationship between

section 519.11 and the common law as applied to antenuptial agreements that address both

marital and nonmarital property and were executed after August 1, 1979. We consider that

relationship now.

A.

To determine whether the procedural fairness of an agreement addressing both

marital and nonmarital property is governed by statute or common law, we begin with the

text of section 519.11. Statutory interpretation is a question of law that we review de novo.

Caldas v. Affordable Granite & Stone, Inc., 820 N.W.2d 826, 836 (Minn. 2012). The goal

of statutory interpretation is to effectuate the intent of the Legislature. Brayton v. Pawlenty,

781 N.W.2d 357, 363 (Minn. 2010). When the intent of the Legislature is clear from the

plain language of the statute, further statutory construction is not necessary. Am. Tower,

L.P. v. City of Grant, 636 N.W.2d 309, 312 (Minn. 2001); see also Minn. Stat. § 645.16

(2016). A statute should ordinarily be read as a whole to “harmonize all its parts, and,

whenever possible, no word, phrase or sentence should be deemed superfluous, void or

insignificant.” Owens v. Federated Mut. Implement & Hardware Ins. Co., 328 N.W.2d

162, 164 (Minn. 1983).

We presume that statutes are consistent with the common law, and that the

Legislature does not intend to abrogate or modify a common-law rule unless it does so by

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express wording or necessary implication of the statute. Do v. Am. Family Mut. Ins. Co.,

779 N.W.2d 853, 858 (Minn. 2010).

Section 519.11 reads, in relevant part:

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. An antenuptial contract or settlement made in conformity with this section may determine what rights each party has in the nonmarital property, defined in section 518.003, subdivision 3b, upon 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 to them by their agreement. This section 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 this section.



Minn. Stat. § 519.11, subd. 1. The statute applies “to all antenuptial contracts and

settlements executed on or after August 1, 1979[.]” Id., subd. 6.

By its plain language, subdivision 1 of section 519.11 limits the reach of the

statutory procedural-fairness standard to provisions of antenuptial agreements addressing

nonmarital property. The first sentence provides two conditions—full and fair financial

disclosure and access to independent counsel—which, if satisfied, are sufficient to make

an antenuptial agreement valid and enforceable. The second sentence, however, specifies

that such agreements “may determine what rights each party has in the nonmarital

property.” Id. (emphasis added). In other words, the statutory standard applies only to

nonmarital property. That interpretation is supported by the third sentence: regarding

agreements that “cover[] or include[] marital property,” the statute “shall not be construed

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to make [such agreements] invalid or unenforceable” if they “would be valid and

enforceable without regard to this section.” Id. (emphasis added). The only reasonable

interpretation of this language is that the validity of provisions regarding marital property

remain governed by the common law.

Read together, the three sentences of section 519.11, subdivision 1, explain the

statute’s relationship with the common law. The language in the first sentence is

conditional rather than mandatory. That is, the sentence tells us that if the parties to an

antenuptial agreement (a) engage in full and fair financial disclosure and (b) have the

opportunity to consult with legal counsel, then the agreement (with respect to nonmarital

property) shall be valid. Thus, conditions (a) and (b) are sufficient conditions for validity,

but are not necessary conditions. So, if a party to an antenuptial agreement distributing

only nonmarital property did not have an opportunity to consult with counsel of his or her

choice, the agreement would not satisfy the statutory standard, but could still be valid under

the common law. But, if parties to such an antenuptial agreement satisfy both conditions,

that agreement would be automatically valid.

The second and third sentences of section 519.11, subdivision 1, reinforce this

reading. The second sentence is conditional as well, stating that conformity with the

conditions in the first sentence “may” (not “shall”) determine the rights of parties in

nonmarital property. The third sentence refers to agreements that “would be valid . . .

without regard to this section” (under the common law) and does not limit itself to

agreements dealing only with marital property.

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Thus, as to antenuptial agreements executed on or after August 1, 1979, the plain

language of Minn. Stat. § 519.11, subd. 1, offers a procedural fairness “safe harbor” for

provisions purporting to distribute nonmarital property. That is, once the statute’s two

basic conditions are met, provisions of agreements addressing nonmarital property are

automatically valid. If the safe harbor does not apply, the common law does.4

The dissent’s assertion that section 519.11, subdivision 1, applies universally—that

is, to all antenuptial agreements including those with provisions that address marital

property—is incorrect. By relying exclusively on language in the first sentence of

subdivision 1, such an interpretation would read out the other two sentences. This would

violate the well-established principle that we interpret statutes as a whole. See Van Asperen

v. Darling Olds, Inc., 93 N.W.2d 690, 698 (Minn. 1958) (stating that “various provisions

of the same statute must be interpreted in the light of each other.”). And it would violate

the Legislature’s intention. As we noted in McKee-Johnson, the Legislature’s statutory

purpose was not to amend the law regarding marital property, but to make it more difficult

to challenge agreements covering nonmarital property.5 444 N.W.2d at 264.



4 This interpretation resolves any tension between subdivision 1 and subdivision 6 of section 519.11. Subdivision 6 states that the statute applies to “all antenuptial contracts or settlements executed on or after August 1, 1979.” We decline to read subdivision 6 to override the common law’s applicability to antenuptial agreements executed on or after August 1, 1979. To do so would be inconsistent with the plain language of subdivision 1 and with our presumption that statutes shall not be interpreted to abrogate the common law unless they do so expressly. See Do, 779 N.W.2d at 858.



5 The dissent’s reading of section 519.11 is not helped by invoking section 518.003, subdivision 3b, which defines nonmarital property as, among other things, property “excluded by a valid antenuptial contract.” Minn. Stat. § 518.003, subd. 3b(e) (2016). The

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But, argues the dissent, we read McKee-Johnson too broadly and rely on dicta within

in it. To the contrary: in McKee-Johnson we read the statute exactly as the Legislature

intended. Moreover, in language essential to the disposition of the case, we addressed two

other questions: whether the agreement was procedurally fair and whether it was

substantively fair. Id. at 265. To answer those questions, we clearly announced: “we must

look to our common law for guidance.” Id. Thus, the dissent’s analysis is inconsistent

with our binding precedent.6

B.

Having determined that the common law governs provisions of an antenuptial

agreement that do not fall within the safe harbor of Minn. Stat. § 519.11, subd. 1, we must

next determine: which common-law test applies? In McKee-Johnson, we determined that

the relevant factors under the common law were “substantially identical” to those in

subdivision 1 of section 519.11—specifically, full and fair financial disclosure and access

to independent counsel. 444 N.W.2d at 265.

In Kinney, however, we articulated a different test for procedural fairness under the

common law. The Kinney common-law test balances four factors: (1) whether there was

fair and full disclosure of the parties’ assets; (2) whether the agreement was supported by



dissent’s invocation of this definition is circular. For an antenuptial contract to be “valid,” it must satisfy either the statute or the common law. This one was not valid, because it satisfied neither.



6 Were the dissent correct, we should have said in Kinney that we erred in McKeeJohnson when we applied the common law. We did not say that. In Kinney, as explained below, we only modified the common-law standard that McKee-Johnson applied. Kinney, 733 N.W.2d at 125.

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adequate consideration; (3) whether both parties had knowledge of the material particulars

of the agreement and how those provisions impacted the parties’ rights in the absence of

the agreement; and (4) whether the agreement was procured by an abuse of fiduciary

relations, undue influence, or duress. Kinney, 733 N.W.2d at 124. The opportunity to

consult with independent counsel remains a “relevant factor,” but is not determinative of

whether an agreement is procedurally fair. Id.

Today we resolve any tension between McKee-Johnson and Kinney. We hold that

the multifactor Kinney test is the common-law test applicable to antenuptial agreements,

whether executed before or after August 1, 1979. McKee-Johnson is overruled to the extent

that it determined that the common-law and statutory procedural tests were “substantially

identical.” They are not.

II.

Having discussed section 519.11 and clarified the common-law test, we now

determine whether the Agreement between Robbie and Michelle is procedurally fair. To

do so, we first determine which provisions, if any, purport to distribute nonmarital property.

If the Agreement contains such provisions, we apply the statutory standard—two

conditions—to determine whether those provisions are in the “safe harbor.” We then apply

the Kinney factors to the remainder of the Agreement. If there are no such provisions, or

if the provisions are not in the safe harbor, we apply the Kinney factors to the entire

Agreement.

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A.

Turning now to the Agreement itself, it is a contract, the terms of which we interpret

de novo. See Quade v. Secura Ins., 814 N.W.2d 703, 705 (Minn. 2012). We interpret

contract terms consistent with their plain, ordinary, and popular meaning to give effect to

the intention of the parties as it appears from the context of the entire contract. Id.

The Agreement contains the following definitions:

2.1 Property. Any reference to the Property of a party means all of such party’s interests in assets, whether such assets are Marital Property or Non-marital Property.



2.2 Non-marital Property. A party’s Non-marital Property shall consist of such party’s interests in assets, real or personal, that are acquired by the party:



2.2.1 Before the marriage or after the date as of which the parties’ assets are valued for the purpose of division upon legal separation or termination of the marriage;



2.2.2 By gift, devise or inheritance from a third party to one but not both of the parties; or



2.2.3 In exchange for or as an increase in the value of any such interest.



2.3 Marital Property. A party’s Marital Property shall consist of such party’s interests in assets, real or personal, that are not Non-marital Property.



Even though these definitions distinguish marital property from nonmarital

property, key provisions of the Agreement do not. Instead, the Agreement uses the

comprehensive term “Property” in the only provision that governs property rights upon

dissolution or separation:

3.2.2 Each party shall retain his or her Property free of any right or claim of the other. Any assets acquired during the marriage from the property of both

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parties, shall be divided between the parties in proportion to the actual monetary consideration provided by each.



By its use of the term “Property,” the Agreement conflates marital and nonmarital

property, making it difficult for us to tell whether its provisions purport to distribute

nonmarital property. In such circumstances, we cannot say that any of the Agreement’s

provisions qualify for the statute’s safe harbor. Accordingly, we apply the Kinney factors

to the entire Agreement to determine whether the Agreement is procedurally fair—

“equitably and fairly made.”

B.

Whether the Agreement is procedurally fair is a mixed question of law and fact. For

the facts, we rely on the findings of the district court, which we will not overturn unless

they are clearly erroneous. Firemen’s Ins. Co. of Newark, N.J. v. Viktora, 318 N.W.2d

704, 706 n.1 (Minn. 1982) (citing Minn. R. Civ. P. 52.01). We assume, without deciding,

that Michelle carries the burden of proof as she has in previous stages of this litigation.7

Analyzing the Agreement as a whole, we conclude that it was not “equitably and

fairly made.” Specifically, two of the Kinney factors—whether the Agreement was



7 Ordinarily, the burden of proving that an antenuptial agreement is unfair and therefore invalid is on the challenger of the agreement under both the statute and the common law. See Minn. Stat. § 519.11, subd. 5; Kinney, 733 N.W.2d at 127. Under the common law, however, if the parties are in a confidential relationship and the agreement is not supported by adequate consideration, a presumption of fraud arises and the burden shifts to the proponent of the agreement. Kinney, 733 N.W.2d at 127. The district court assigned the burden of proof to Michelle and the court of appeals did not address whether the burden shifted to Robbie under the common law. We need not decide the issue. The result is the same regardless of who has the burden.

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supported by adequate consideration and whether the Agreement was procured by duress—

weigh heavily in Michelle’s favor.

First, there was inadequate consideration. Ordinarily, our inquiry into consideration

supporting contracts is easily satisfied—we accept any exchange that has value under the

law. Estrada v. Hanson, 10 N.W.2d 223, 225 (Minn. 1943). In the antenuptial context,

however, we require more. Because antenuptial agreements typically involve parties in a

confidential relationship, capable of exploitation, we inquire into whether consideration

supporting antenuptial agreements is “adequate.” See Kinney, 733 N.W.2d at 122–23

(discussing Slingerland v. Slingerland, 132 N.W. 326, 328–28 (Minn. 1911)).

In assessing the adequacy of consideration, we examine the circumstances

surrounding the execution and enforcement of antenuptial agreements to determine

whether they are fair and equitable. See In re Estate of Serbus, 324 N.W.2d 381, 385

(Minn. 1982) (examining the value of the deceased husband’s estate and the wife’s share

under the agreement); Slingerland, 132 N.W. at 328 (noting that the husband and wife had

been married 20 years and had four living children at the time of his death). Thus, we have

held that an antenuptial agreement must sufficiently provide for the financially

disadvantaged spouse. See Serbus, 324 N.W.2d at 385 (stating that “[t]he consideration

for the antenuptial contract was clearly inadequate” where the wife would receive “far less

than she would be entitled to” in the absence of the contract and that under the contract she

would receive “the sum of $4,000 and a life estate in the homestead and its furnishings.”);

In re Malchow’s Estate, 172 N.W. 915, 917 (Minn. 1919) (determining that consideration

was inadequate where the wife would receive “but a small portion of what she would

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otherwise get under the statutes”); Slingerland, 132 N.W. at 328 (determining that

consideration was “pitifully inadequate” where enforcing the agreement would leave the

wife “penniless”).8

In this case, the language of the Agreement appears equitable on its face given that

“each party renounces any right to claim alimony or maintenance” and “[e]ach party shall

retain his or her Property free of any right or claim of the other.” (Emphasis added.) But

the circumstances reveal that these terms are patently one-sided. Here, Robbie came into

the relationship with significant assets which increased in value over the course of the

marriage, and Michelle came into the marriage with very little. If the Agreement were

enforced, she would leave the marriage with very little. Yet Michelle contributed to

Robbie’s farm operation throughout the marriage, maintained the household, and cared for

the couple’s child. We cannot conclude that the consideration Michelle received for

executing this Agreement was anywhere near adequate.

The second Kinney factor weighing heavily in Michelle’s favor is that this

Agreement was procured by duress. Duress is coercion by means of threats or other

circumstances that destroy the victim’s free will and compel her to comply with some

demand of the party exerting the coercion. Wise v. Midtown Motors, 42 N.W.2d 404, 407

(Minn. 1950). “The test is not the nature of the threats, but rather . . . whether or not the



8 On one occasion, we said that marriage itself is sufficient consideration to support an antenuptial agreement. See In re Appleby’s Estate, 111 N.W. 305 (Minn. 1907). But we later clarified that this is only the case where both spouses have independent means or the agreement in question substantially provides for both spouses. See Welsh v. Welsh, 184 N.W. 38, 38–39 (Minn. 1921).

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[victim] really had a choice,” whether the victim had the “freedom of exercising [her] will.”

Id. (internal quotation marks omitted). Thus, the issue here is whether Michelle acted of

her own free will, or whether her free will was overcome by Robbie and the circumstances

surrounding the execution of the Agreement.

As the district court found, “there was an overreaching” because Robbie

“intentionally created a situation where [Michelle] was pressured/coerced into signing” the

Agreement. This finding is well-supported by the record. Michelle’s free will was

overcome by Robbie’s threat to call off the wedding and the limited amount of time that

Michelle had to consider the Agreement, consult with an attorney, and decide whether to

sign it or not. Robbie knew that Michelle had reservations about signing an antenuptial

agreement and that no terms had been negotiated. She was completely in the dark for more

than a month while Robbie received legal advice and prepared the Agreement. Robbie

presented Michelle with his signed Agreement a mere three days before they were

scheduled to depart for their destination wedding. As a result, Michelle was left to

scramble to find an attorney, with whom she met on the day before the couple’s departure.

Before the district court, Robbie attempted to discount the implications of his

tactics, claiming that his attorney had advised him not to tell Michelle about the Agreement

or its terms and that Michelle had every opportunity to negotiate. The district court did not

find these assertions to be credible. To the contrary, the district court determined that

Robbie intentionally created a situation that “took away [Michelle’s] ability to seek counsel

of her own choice and receive and digest [an attorney’s] advice in any meaningful way.”

These facts show that Robbie procured the Agreement by duress.

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Due to the significant weight of these two factors—inadequate consideration and

duress—the remaining Kinney factors cannot outweigh them. Even if we assume that

Robbie’s financial disclosure in the form of exhibits attached to the Agreement constituted

full and fair disclosure, and assume that Michelle actually understood the impact of the

Agreement on her rights, we conclude that this Agreement did not satisfy the common law

test for procedural fairness. It is therefore invalid and unenforceable.9

For the foregoing reasons, we affirm the decision of the court of appeals.



Affirmed.