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The Do’s and Don’ts of Pre-Nuptial Agreements

Pre-Marital agreements—commonly referred to as prenuptial agreements—are useful, but many people don’t take advantage of them. Some people consider the idea of planning how to divide assets in a divorce to be fatalistic, materialistic, or downright offensive. Others recognize that in most cases they are simply common sense.

Although marriage represents the loving bond between two individuals, people overlook the fact that marriage is also a financial partnership. And, like other financial partnerships such as businesses, it is important to have contingency plans for different situations, including worst-case scenarios. Not having a plan can end up costing the parties significantly more than if they had one in place. Ultimately, that is what a marital agreement is—a “just-in-case” plan for different situations, including divorce.

Michigan recognizes and will generally enforce a properly drafted and negotiated prenuptial agreeements. But, how will your prenuptial agreement protect you? Can a prenuputial agreements cover issues other than divorce? What cannot be included in a prenuptial agreement? This article addreses these questions.

Valid Marital Agreement Provisions

Michigan, like all states, follows a body of law as to the interpretation and enforceability of prenuptial contracts.

A valid premarital agreement in Michigan can cover the following issues:

  • The definition of “marital property”
  • The definition of “non-marital” property
  • How marital property is divided upon divorce
  • How marital property is divided when a spouse dies during marriage
  • Spousal support payments in case of divorce
  • Financial responsibility for any children’s college tuition in the event of divorce

Importantly, prenuptial agreements can address situations that don’t involve divorce. They can express the parties’ intentions for allocating financial responsibilities during marriage and establish plans for the ultimate worst-case scenario: the death of a spouse.

Invalid Marital Agreement Provisions

Generally, spouses are free to contract about nearly any issue about their marriage. However, there are some terms that are not valid under the law. This means that a spouse cannot legally enforce such provisions.

Under Michigan law, spouses cannot expect a court to enforce the following provisions:

  • Child support
  • Child custody and parenting time
  • Promises to perform an illegal act
  • Unfair, unilateral, contract terms

Furthermore, like most contracts, the enforceability of a prenuptial agreement hinges on there having been full disclosure of all financial circumstances between the parties, ample time between the execution of the agreement and the wedding so as to avoid claims of duress by either party, and both parties having had the opportunity to have his or her own attorney review, negotiate and explain the agreement before it is signed. And, on the last bullet point above, the Agreement must be fair when it is agreed upon and fair when it is enforced in order to hold up. There is a saying in the accounting world that “pigs get fat, hogs go to slaughter.” That is, the parties can agree to even a one sided prenuptial agreement up to a point, but if it slants ridiculously in one party’s favor its unlikely to be enforced.

Conclusion

The benefits of a prenuptial agreement far outweigh the disadvantages. Unfortunately, many couples miss out on an opportunity to take advantage of those benefits simply to avoid an uncomfortable conversation. However, this begs the question—if you cannot haven an open conversation about an uncomfortable subject with the person you intend to spend the rest of your life with, are you ready to get married?

There needs to be an attitude shift about prenuptial agreements. It is customary for the bride and groom to recite wedding vows on their wedding day. Some people take that custom to the next level and create custom wedding vows. In the end, that’s ultimately what a prenuptial agreement is: custom—albeit less poetic--wedding vows you make in private and are enforceable at law so you and your spouse know are not just paying lip service to the idea of marital commitment.

Reach Out to the Amercan Divorce Association for Men for Advice

If you want to know more about the benefits and requirements of a prenuptial agreement, you should consult a dedicated attorney from the American Divorce Association for Men (ADAM). Prenuptial agreements can be vaild and enforceable but you need to have it done correctly and well in advance of the wedding. At ADAM, our legal team can advise you about the benefits of a prenuptual agreement and its legal implications as they specifically apply to the unique circumstacnes of your case.

Call us at (248) 327-0050 or contact us online for a free phone consultation about your case.