Prenuptial and postnuptial agreements can make divorce and estate planning choices easier. They are a key tool to protect each spouse's premarital property or children, and to set the guardrails for the couple's new life together. The Michigan family law attorneys at Bebout, Potere, Cox & Bennion, P.C., know when and how to use marital agreements to direct the Courts to honor the couples' wishes in the event of divorce or either spouse's death.
Do You Need a Prenuptial Agreement?
Many people believe that antenuptial agreements – or more commonly referred to as prenuptial agreements – are only for the rich and wealthy. They may see them as an asset protection tool for families with trust funds or family businesses. While they can serve these purposes, these contracts can also benefit couples of all income levels. Prenuptial agreements are typically best suited for individuals who:
- Have a considerable amount of assets before marriage
- Are coming into marriage with large debts
- Have business investments they want to keep separate
- Have inheritance money or large monetary gifts in their name
- Have children from prior relationships whose inheritance they want to protect
- Want to adjust the way Michigan courts treat their property or spousal support
Prenuptial agreements allow spouses to take an inventory of their assets and debts before the wedding ceremony and determine how these should be distributed if the marriage ends in divorce or one party's death. In most cases, prenuptial agreements are drafted before any negative feelings arise, making the process typically amicable and easily negotiable. Entering into a thoughtful prenuptial agreement prior to marriage can reduce the conflict, time, and litigation costs in any eventual divorce.
How to Make Sure Your Prenup is Enforceable in Michigan
The Michigan courts will generally enforce a prenuptial agreement as long as:
- It was signed prior to or in anticipation of the marriage
- Both parties clearly disclosed their assets at the time of entry
- Each party is represented by separate attorneys (or waives his or her right to do so)
- Both parties sign voluntarily without legal coercion
- The terms of the agreement are not so unfair that it shocks the court (are “unconscionable”)
To make sure your prenuptial agreement will be enforced, you should start negotiations early, and make sure you and your soon-to-be spouse each have an opportunity to talk to an attorney alone, and without interference.
However, under Michigan law, the existence of a prenuptial agreement laying out each party's “separate property” does not guarantee that the other party may not receive a share of that property. Michigan law includes two “invasion statutes” that allow one spouse to be awarded some of the separate property of the other spouse if:
- The property awarded to the non-owner spouse is not enough to support them (need)
- The non-owner spouse took active steps to contribute to the appreciation in the separate property's value (contribution)
This is why it is important that prenuptial agreements be written in a way that is fair to both parties, and accounts for the family's merging interests over time.
What is a Postnuptial Agreement?
A postnuptial agreement, or postnup, is a legal contract created after a couple is married. It serves a similar purpose to a prenup, detailing how assets and debts will be divided in case of divorce or separation. However, in addition to the requirements of a prenuptial agreement, a postnup must be supported by additional consideration beyond the marriage itself. In other words, each spouse must give something up and gain something under the contract for it to be enforceable.
How Prenuptial and Postnuptial Agreements Help with Divorce
The main reason many people sign prenuptial and postnuptial agreements is to streamline the divorce process. A prenuptial agreement cannot dictate child custody and parenting time or child support. However, it can resolve issues like spousal support and property division disputes based on the parties' agreement when cooler heads prevailed. If you have a prenuptial agreement and are getting a divorce, you can file a motion to enforce that prenuptial agreement, removing many potential issues and making it easier to reach a fair and equitable settlement agreement.
How Antenuptial Agreements Affect Estate Planning and Administration
Prenuptial agreements also often influence spouses' estate planning and administration after their deaths. Many prenuptial agreements include provisions waiving one spouse's interest in the estate of the other, except as described in that agreement. They also can include provisions promising separate property to the parties' heirs, children, or other intended beneficiaries, without any claim from the other. This makes prenuptial agreements especially important in blended families, where family dynamics and conflicts can result in will challenges during the estate administration process.
Get Help Drafting Prenuptial and Postnuptial Agreements from a Michigan Family Lawyer
At Bebout, Potere, Cox & Bennion, P.C., we care about you and your family. We help individuals and families in Rochester Hills, Rochester, Troy, Lake Orion, Oxford, Oakland County, Macomb County and throughout Southeast Michigan. We can help you decide whether a prenuptial or postnuptial agreement is right for you and prepare or review the agreement to ensure it is enforceable in court. Call us at 248-651-4114 or contact us here to speak to an attorney.