What is a Postnuptial Agreement?
A postnuptial agreement is very similar to a prenuptial agreement. Both are contracts between married couples, signed in the presence of a witness, explaining how the couple would like their debts and assets to be divided if a divorce should happen.
If I didn’t get a Prenuptial Agreement before marriage, should I get a Postnuptial Agreement?
Many spouses choose neither a prenuptial nor a postnuptial. Of course, many of these couple later fight over assets if they end up in divorce. The decision to get a postnup is best made between you and your spouse. However, if the both of you agree that a postnup is in your best interest, you should seek the advice and counsel of an experienced family law attorney.
With the help of a family law attorney, postnuptials can be a great thing that will help you protect your assets and protect you from your spouse’s debt. Not only that, but going through the process of a postnup can allow you and your spouse to discuss finances, your plans for your assets, and wealth and inheritance.
Perhaps you and your spouse haven’t discussed these things before or, if you have, maybe in not such a clear and direct way. These types of discussions are very healthy for couples to have, especially if they plan on staying together for the long haul, because it allows them to plan for their financial future in positive ways.
Is a Postnuptial Agreement enforceable in court?
Hopefully yes. But possibly not. In the past, many postnuptial agreements have proven not to be enforceable in court. This is because Michigan law has long pushed the idea that postnuptial agreements encourage the couple to divorce rather than stay together. However, if the postnuptial agreement has been properly written, it may be enforceable. Michigan law is constantly changing and it always up for reinterpretation, depending on your case.
One recent example of the enforcement of a postnuptial agreement is the case Hodge vs Parks. This case was ruled in 2014 and reopened the possibilities for postnuptial agreements. In this case, the court ruled that the postnuptial agreement encouraged the couple to stay together – even though their reconciliation only last five years. This favorable ruling towards postnuptial agreements has encourages many couples to get them, in the hopes that their postnuptial will be enforceable in the future.
Points to remember about Postnuptial Agreements
If you and your spouse already wrote a prenuptial agreement, then you should not get a postnuptial agreement. You can only get one or the other. If you want to modify something from your prenuptial agreement, getting a postnuptial is not the way to do it.
The court may end up deciding not to honor your postnuptial agreement at all. This is because the court is not required by law to honor the postnuptial agreement in the event of divorce.
In addition, if you and your spouse are considering divorce then you should definitely NOT get a postnuptial agreement while you are residing together and deciding whether to divorce. Postnuptial agreements are meant to help couples stay together.
If the court sees that your postnuptial agreement could have encouraged divorce, it is highly unlikely that they will enforce your postnuptial agreement. If you are considering a divorce, you should seek the advice and counsel of an experienced family law attorney to help you with your next steps.
What is involved in a Postnuptial Agreement?
If a postnuptial agreement is best for you and your spouse, you must know the following important information:
- You must disclose to your spouse a full and accurate account of all your debts and assets before signing a contract.
- Enough time must be given to each party to fully consider, contemplate and understand all details the contract may entail.
- Each party must have their own advising attorney. One attorney should NOT be responsible for advising both parties.
- An experienced family law attorney should draft the agreement and advise you of any changes in Michigan law or reinterpretations that could affect your agreement.
Kronzek Firm Postnuptial Agreement Attorneys
The Kronzek Firm’s family law attorneys have decades of experience working with married couples. Our attorneys understand the complexities of property division and will help you protect your assets in the event of a divorce.
If a postnuptial agreement is not the best option for you, we can suggest other options to help accomplish your goal.
We will help you understand the assets and debts of both you and your spouse, and will help draft a fair postnuptial agreement if that serves your interests. Our attorneys keep up with the ever-changing laws, so we are always up-to-date and ready to draw up a postnuptial agreement that has the best chance of being honored in court.