What is a Postnuptial Agreement?
A postnuptial agreement, much like a prenuptial agreement, is a contract signed by a married couple in the presence of a witness, that explains exactly how they would like their debts and assets divided in the event of a divorce. The one distinct difference, is that a postnuptial agreement is drawn up and signed after the couple is already married, while a prenuptial agreement is put in place before a couple is married.
Should I get a Postnuptial Agreement if I didn’t get a Prenuptial Agreement before marriage?
Obviously, this choice lies ultimately with you and your spouse. However, if you both agree that, having not signed a prenup before getting married, you would like to put a postnup in place, we would advise that you seek the help and counsel of an experienced family law attorney.
Postnuptial agreements, when properly created with the help of a family law attorney, can help to protects your assets, and also protect you from your spouse’s debt. In addition, it can provide you and your spouse an opportunity to discuss your future hopes and plans for your assets, wealth and inheritance.
And finally, sitting down to look at all of your assets and debts, and deciding what you both want for the future, can provides you with an opportunity to assess your financial situation, and make decisions that will affect your financial future in positive ways.
Is a Postnuptial Agreement enforceable in court?
When they are properly drafted, postnuptial agreements can be enforceable under Michigan law. However, this is a recent phenomenon, and showcases how the law is a malleable entity and is constantly subject to reinterpretation and change.
For many years, the majority of family law attorneys have advised their clients not to bother writing up a postnuptial agreement because the courts in Michigan do not enforce them. The reason for this is that Michigan courts have ruled, time and again, that postnuptial agreements encourage divorce, and are therefore void because they are against public policy.
But in 2014, the Michigan Court of Appeals enforced a postnuptial agreement in the case of Hodge vs Parks. In that particular case, the court ruled that under the circumstances, the agreement actually encouraged the couple to stay together rather than encouraging them to divorce, although their reconciliation only lasted five years. This ruling has caused a number of family law attorneys to encourage more clients to write up post nuptial agreements on the grounds that they may be enforceable in the future.
Points to remember about Postnuptial Agreements
It is important that you remember that you cannot get a postnuptial agreement to replace a prenuptial agreement. If you and your spouse signed a prenuptial agreement and you have since changed your mind about what was in the agreement, a postnuptial agreement cannot be used to replace it.
Additionally, it is very important to remember that, despite your best intentions, the court may still choose not to honor your post-nuptial agreement. No matter how well intentioned or well drafted it is, the law does not currently require that they uphold it, should you get a divorce in the future.
As family law attorneys, we do encourage couples to write up a postnup agreement in the event that they didn’t get a prenup, and in the hopes that it might save them a good deal of conflict in the future, there is no guarantee that it will be considered legally binding by the court.
Also, if you and your spouse are considering a divorce, then now is NOT the time to begin preparing a postnuptial agreement. One of the reasons that the court often chooses not to honor postnuptial agreements is that they may be considered to encourage divorce. If you are considering a divorce, you would need to get help from an attorney to plan for divorce proceedings. A postnuptial agreement is not for the couple who intend to get divorced.
What is involved in preparing a Postnuptial Agreement?
If you and your spouse decide that you would like to prepare a postnuptial agreement, you will need to know the following information, because it is very important:
- You must make a full and accurate disclosure to your spouse of all your debts and assets before the contract is signed.
- You should allow enough time for both parties to fully consider, understand and contemplate the contract before the signing.
- Both parties should have their own attorney advising them. You shouldn’t even ask one attorney to represent both parties.
- You need to hire an experienced family law attorney to draft the agreement and advise you about the latest developments in the law that pertain to your agreement.
Kronzek & Cronkright Postnuptial Agreement Attorneys
The family law attorneys at Kronzek & Cronkright have been working with married couples for many years, assisting them in properly drawing up these agreements which are becoming increasingly popular and helpful to couples.
Because the laws in this area changes often, it is important for any attorney drafting the agreement to be familiar with all of the most recent changes in the law. Our family law attorneys are experienced, hard working and diligent, and are ready to sit down with you to help you prepare for the future.
At Kronzek & Cronkright, our family law attorneys have considerable experience working with married couples to draw up these agreements so that they will have the best chance of being honored in court.
Because divorce law changes often, it is important for any attorney drafting the agreement to be familiar with all of the most recent changes in the law. At Kronzek & Cronkright, our family law attorneys are experienced, hard working and diligent, and are ready to sit down with you to help you prepare for your future.