Prenuptial Agreements

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    Michigan’s View of Prenuptial Agreements

    A bride and groom sitting together

    A prenuptial agreement is a contract made between a couple before they marry. A prenuptial agreement is also commonly known as an antenuptial agreement, and it must be signed in front of a witness.

    This agreement will describe how a couple will proceed in the event of marriage dissolution. Dissolution means divorce, separation, annulment or death of a spouse. Some of the items outlined in this document are asset division, debt division, spousal support, and other financial matters.

    A prenuptial agreement is a great tool for couples preparing for marriage.  Many people fear that prenuptial agreements encourage divorce, but it is actually a great way for couples to assess their finances and prepare for the future.

    If a couple is already married but did not write a prenuptial agreement, it might not too late to consider division of assets. Many couples are now writing postnuptial agreements instead. However, Michigan law is now in a state of flux regarding post nuptial agreements being enforced. It’s not a slam dunk.

    Whether you decide to write a prenuptial or postnuptial agreement, both contracts will allow for an easier divorce process, should this ever occur. Divorce is often a very long and costly process, so anything to facilitate it should be taken into consideration.

    A prenuptial agreement is serious decision. You should give carefully decide whether this is right for you. If you do decide to get a prenuptial agreement, both parties need to make sure their needs are accurately and fairly represented in the document.

    Continue reading this page for more details on prenuptial agreements, such as why people get them and how Michigan enforces them. You can also contact one of our expert attorneys for an even more in-depth discussion.

    Should I get a prenuptial agreement?

    two wedding rings and a ticking clock

    Getting a prenuptial agreement is a serious decision. You and your future spouse should decide together whether or not this would be a good choice for you.

    Oftentimes, people are hesitant to get a prenuptial because they are afraid it might encourage divorce. However, the goal of a prenuptial agreement is not to encourage the couple to split.

    The goal of a prenuptial agreement is to allow each spouse to protect themselves in the event of divorce.  If a prenuptial agreement has been made between the couple, then it helps to make the divorce process just a bit less painful and damaging.

    Sometimes couples are also afraid to discuss a prenuptial agreement because they don’t know how their future spouse will react. Prenuptials are nothing to be afraid of – you can explain to your spouse that a prenuptial would be in the best interest of both of you.

    If you are considering a prenuptial agreement, it is important to note that not all prenuptials are enforceable in court. You need an experienced attorney who understands family law and who understands what kinds of agreements are enforceable in court. The effect of the agreement can be dispositive to the outcome and prenuptials are often contested in court.

    There are a variety of reasons that one might want to take part in a prenuptial agreement, including:

    • to protect the parties’ assets accumulated before marriage that they wish to keep as separate property, including the value of any appreciation of this property;
    • to address the disposition of any future inheritance;
    • to reduce the cost of litigation in the event of divorce;
    • to reduce the emotional drain of the divorce process;
    • to outline the existence of a business or investment that a party wants to keep as separate property;
    • to avoid inequitable property division;
    • to avoid disputes on the value of property;
    • to ensure that prior children are provided for and are able to receive their accumulation of wealth;
    • to bar spousal support (alimony payments) to the other spouse;
    • to address future uncertainties, risk, and expected income increases; or
    • to protect the parties where they have a significant difference in incomes and assets.

    A prenuptial agreement can, and should, be made to fit your individual needs. This can mean that if you want your prenuptials to expire after a certain amount of time, you can write this into the agreement. Similarly, you can adjust the prenuptials to account for the length of the marriage. For instance, the agreement can explain that a larger sum of money will be paid to a certain party depending on how long the couple has been together.

    Enforcing a Prenuptial Agreement

    A man tearing up a contract

    As you now know, a prenuptial agreement is made between a couple that plans on marrying. The purpose is to define or relinquish marital rights, such as spousal support and property division. 

    For the most part, prenuptial agreements are treated like any other legally-binding contract. In fact, MCL 557.28 states that “[a] contract relating to property made between persons in contemplation of marriage shall remain in full force after marriage takes place.”

    When making a prenuptial agreement, the goal is to create a contract that the court will enforce. This means that, instead of following the general rules of property division, the court will rely on the couple’s prenuptial agreement. When properly written, a prenuptial can be used in the event of divorce, or death of a spouse.

    A prenuptial agreement does have limitations. For instance, the agreement cannot affect child support obligations or child custody arrangements. The court determines the outcome of these types of issues and a prenuptial agreement with these types of provisions are unenforceable.

    For a prenuptial agreement to be enforceable, it must be made in writing. It must be fairly executed and must be entered into voluntarily after full disclosure. Rinvelt v Rinvelt, 190 Mich App 372; 475 NW2d 478 (1991). Full disclosure occurs when each party is full aware of the other party’s assets.

    To better ensure that your prenuptial agreement will be enforceable, it is a good idea for each party to get their own lawyer representation. This will increase the likelihood that the agreement was entered into after full disclosure. Both parties will need to fully disclose all assets and their value, all debts, all income and sources of income, education, employment, age and health status. In particular, full disclosure of all financial assets is very important in a prenuptial agreement due to policy reasons.

    A prenuptial agreement must be fair at the time of the agreement – but not necessarily at the time of divorce. However, there are a few circumstances where a normally enforceable agreement may become void.

    “A prenuptial agreement may be voided:

    (1) when obtained through fraud, duress, mistake, or misrepresentation or nondisclosure of material fact,

    (2) if it was unconscionable when executed, or

    (3) when the facts and circumstances are so changed since the agreement was executed that its enforcement would be unfair and unreasonable.”

    Reed v Reed, 265 Mich App 131, 142-143; 693 NW2d 825 (2005).

    a hammer cracking a little house into two pieces

    These exceptions to the rule could apply when the change in circumstance was not foreseeable at the time of the agreement. For example, this could occur when the assets and earnings of one spouse have increased significantly more than the other spouse.

    However, if the prenuptial agreement determined that the couple would have separate assets, then a discrepancy between a couple’s assets is a foreseeable circumstance. Something else that would not be considered a changing circumstance would be if the marriage lasted a considerable amount of time.

    If you are already married, but failed to get a prenuptial agreement, it is not too late for you and your spouse to consider how to divide assets should your marriage dissolve. Married couples have the opportunity to create a postnuptial agreement. Again, the enforceability of these post nuptial agreements is present in question.  

    This is essentially the same type of contract as a prenuptial agreement, only it is written after marriage. There are different requirements for a postnuptial agreement, which you can read about here.

    Expert Antenuptial Agreement Lawyers

    You will need the aid of an experienced Family Law Attorney to create an enforceable prenuptial agreement. Call The Kronzek Firm today to arrange a consultation in our office.


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