If you are starting to think about marriage, you may have concerns about what will happen to your property or business interests in the event of death or divorce. Planning for your future can bring up a lot of uncertainty and can even result in cold feet. Knowing when and how to get a prenup, and how a marital agreement can protect your interests, will help quiet your concerns, and get your marriage off to a strong start.
What Is Included in a Prenuptial Agreement
A prenuptial agreement is a contract signed by an engaged couple in consideration for the marriage itself. It goes into effect at the time of the marriage and is enforceable against either spouse and their estates in the event of death or divorce. Essentially, it is a domestic agreement that lays out the couple's expectations for their lives together. In most cases, it includes provisions related to:
- Household expectations and division of marital expenses
- Distribution of assets when one spouse dies
- Division of property in the event of divorce
Because a prenup is an enforceable contract that will often take priority over state law (within limits), it affects both parties' rights when the marriage ends. The specific terms of a prenuptial agreement can and should be negotiated between the parties to reflect their needs and preferences. However, to be enforceable, the contract should include full disclosures of both parties' assets and debts going into the marriage. In addition, under Michigan law, couples are not allowed to enter a prenuptial agreement that:
- Sets child custody or parenting time in advance
- Waives or limits child support
- Limits the Court's authority to award spousal support based on need or contribution of either spouse
When You Should Get a Prenup
The more life history you or your spouse has had, the more likely it is that a prenuptial agreement will be beneficial. If you are getting married in your early 20s, fresh out of college, with few assets to either party's name, you probably don't need to get a prenup. There simply aren't enough assets to protect. However, you should consider getting a prenuptial agreement if either you or your spouse:
- Own considerable assets (including a home)
- Have children from a prior marriage or relationship
- Owe large debts such as student loans or medical bills
- Own interests in a family business or closely held company
- Anticipate receiving inheritance or monetary gifts from family
Prenuptial agreements are especially important for business owners and blended families. They can be used to shield assets that could trigger an unanticipated buy-back, and to ensure that a stepparent can't interfere with a step-child's inheritance.
How to Get a Prenuptial Agreement
If you want to get a prenup, there are several steps you should take to make sure it cannot be challenged later in court:
- Talk to your fiancé early and honestly about your reasons
- Hire two attorneys, one for each of you (this is not strictly necessary, but is highly preferred by Michigan family court judges)
- Provide each other with bank statements, credit balances, mortgage balances, and disclosures of any other substantial assets or debts (consider exchanging credit reports)
- Work with your attorney to prepare an initial draft of the agreement
- Give your fiancé time to discuss the proposal with his or her attorney privately
- Be flexible in negotiating the contract's terms to accommodate any concerns
- Ensure that the terms of the agreement appear equitable to an outside observer
- Have both parties and their attorneys sign the prenuptial agreement well before the wedding day
- Keep a copy of the prenuptial agreement in a safe place
- Give a copy of the prenuptial agreement to your estate planning attorney when considering your end-of-life wishes
When to Start Negotiating a Prenuptial Agreement
It is never too early to start discussing whether you and your fiancé want to get a prenup. But it can be too late. Remember that a prenuptial agreement must generally be negotiated and signed before the day of your wedding. The closer you get to the wedding date, the more closely the Michigan Family Court will look at the terms of the agreement to make sure they were voluntary if someone challenges the prenup in a later divorce.
You should start talking about whether you want a prenuptial agreement and what terms might be included early in your engagement. This will give both parties time to adjust to any emotional response the conversation causes, consider their positions, retain separate prenuptial agreement attorneys, and fully negotiate the terms of the contract.
Get Help Getting a Prenup 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 prenup is right for you and negotiate and prepare an enforceable prenuptial agreement, setting up your marriage for success. Call us at 248-651-4114 or contact us here to speak to an attorney.
