Practice Areas
Post-Nuptial Agreements
What are Post-Nuptial Agreements?
Generally, post-nuptial agreements arise under two distinct sets of circumstances:
- Incident to a divorce or separate maintenance action
- Upon the realization that there is an actual dispute as to how income or property will be treated in a divorce action or separate maintenance, with a view toward preserving the marriage by resolving the dispute.
The standard for enforcing a post-nuptial agreement is not as strict as the standard for enforcing a pre-nuptial agreement. This is because it is entered into after the parties are married. By the time the agreement is signed, both parties know what their assets consist of and they do not have "stars in their eyes" as is often the case when a pre-nuptial agreement is signed. Generally speaking, Michigan appellate courts will not "rewrite a contract between adults who negotiated their own property disposition in anticipation of separation or divorce. Absent fraud, coercion, or duress, the adults in the marriage have the right and freedom to decide what is a fair and appropriate division of the marital assets." Lentz -vs- Lentz, 271 Mich App 465 (2006).
Drafting a valid post-nuptial agreement requires the skill of a knowledgeable family law attorney. Please contact us for further information.
Are Prenuptial Agreements Valid in Michigan?
Yes. Prenuptial (also called antenuptial) agreements are enforceable in a divorce action, so long as they are fair, equitable, and reasonable, and voluntarily entered into with a full understanding of rights the parties are giving up. It must meet a three-pronged test for determining validity and fairness:
- Was the agreement obtained through fraud, duress, mistake, or misrepresentation, and without full disclosure of assets?
- Was the agreement unconscionable to one party when signed?
- Have the facts and circumstances changed since the signing, so that enforcement of the agreement is ufair and unreasonable?
All of these questions must be answered in the negative for the agreement to be valid. The spouse who is challenging the validity of a prenuptial agreement has the burden of proving that some or all of these factors are not met. If the prenuptial agreement is set aside by the court, the general rules of property division and spousal support will apply. Your lawyer is the best person to advise you in your particular case.
In a country where over half of first marriages end in divorce, many people contemplating second or third marriages who have assets and grown children, find that having a properly drafted prenuptial agreement is an excellent safeguard that allows them to pursue their desire to remarry without risking the loss of assets they have worked all their lives to build.