Most people are aware of the term “prenuptial agreement”. The term is often used to describe a written agreement between two parties prior to marriage. In theory, this agreement protects someone’s assets in case the marriage is terminated. In the State of Michigan, this agreement is formally known as an Antenuptial Agreement, and is outlined under MCL 557.28.
Many individuals are not aware of the details surrounding what these agreements actually are, what the cover and how they work. When an individual is considering an antenuptial agreement as part of their marriage process, it is important that they understand all of the important details surrounding these documents.
An Antenuptial Agreement is defined as a written contract between two people who are about to marry which sets out the terms of possession of assets, treatment of future earnings, control of the property of each, and potential division if the marriage is later dissolved. In other words, the agreement provides each party with certainty if the marriage doesn’t work out.
These agreements are fairly common if either or both parties have substantial assets, children from a prior marriage, potential inheritances, high incomes, a family business to protect, a desire to save the high cost of future litigation or if one spouse has had a previous marriage that ended in a perceived unfair manner.
Prenuptial Agreement Requirements
The State of Michigan has held that antenuptial agreements are valid as long as “that agreement, contact or promise or a note or memorandum of the agreement, contact or promise is in writing and signed with an authorized signature by the party to be charged with the agreement, contract or promise”. Essentially, what this means is that an oral agreement is considered invalid in the eyes of the courts.
This agreement must be executed prior to the marriage, and there is a special duty of disclosure that is higher than the duty of disclosure in a typical contracted agreement. Both parties have a duty to disclose their assets before the signing of the agreement, and failure to do so may result in the agreement being void.
Michigan courts have stated the prenuptial agreement must be entered into willingly and must not be unconscionable. Also, if the conditions and circumstances surrounding the agreement at the time of being entered into have changed, the change in circumstances must not result in making the agreement unfair and unreasonable. If the agreement is unfair and unreasonable, it may be possible to void the original agreement, and proceed without the agreement interfering with the divorce process.
Michigan courts have also held that the agreement must be “fair.” It is also necessary that the facts and circumstances are unchanged since the agreement was executed to the time when the agreement is enforced. In order for the agreement to be enforced at a later date, any change in circumstances must have been uncontemplated and not reasonably foreseeable by the parties prior to or at the time of the making of the agreement.
Antenuptial agreements can have what are called escalator clauses, which entitles a party to more money, property etc the longer the marriage. It is also possible to put in the agreement that if the marriage reaches a certain number of years, the agreement will no longer be enforceable.
What Is Covered Under a Prenup?
Property is usually the number one asset to be protected. The agreement must clearly define what separate property is to be protected by the agreement . This could be the property held prior to the marriage, or to also protect the appreciation and earnings from the property during the marriage. Client’s also wish to protect gifts and future inheritances.
Spousal support can also be part of the agreement, which could state that one party is not entitled to spousal support or can be specific about what amount would be paid. It is also important to make sure that certain language is in the agreement stating that spousal support cannot be modified.
It’s important to note, that antenuptial agreements cannot contain provisions limiting or determining child support payments.
Asset Disclosure Requirements
There is a full duty to disclose, and give a full accounting of all assets. These assets include but are not limited to the following:
List of assets and their value
Previous child support obligations and entitlements
Spousal support or other financial obligations to former spouse
Amount and source of income
Educational background of each party
Employment status of each party
Age and health status of each party
In addition to agreements made before marriage, there is the possibility for couples to create these types of agreements during their marriage. Known as postnuptial agreements, these are intended to serve the same purpose as prenuptial agreements by setting out the disposition of the couple’s property and their rights and obligations regarding support if the marriage were to end. Basically, the main difference between the two is whether the agreement was executed prior to or during the marriage.
Agreements like this face strict scrutiny by the court, because courts have found that these types of agreements are against public policy, because a married couple cannot enter into a contract that anticipates and encourages a future separation. This type of agreement has a much better chance of being held enforceable if the parties who are currently separated and are already in the divorce process.
Hiring A Prenuptial Agreement Attorney
While individuals can utilize forms and existing agreement formats to create a Prenuptial/Antenuptial or Postnuptial Agreement on their own, it is highly recommended to consult an attorney who specializes in family law to draft and review these agreements. In the unfortunate event where they may need to be used one day, the quality of the rest of your life often depends on how these agreements hold up in court during divorce proceedings – which is directly related to how well they are written, structured and implemented.
The family law attorneys at Kelly & Kelly P.C. have decades of combined experience handling divorces, child custody disputes and legally binding agreements between couples. When you choose our firm to handle your prenuptial agreement, we will work hand in hand with you to understand your exact situation and ensure you and your assets are legally protected from every conceivable angle in the event of a divorce. Contact our office today to get started.