Perhaps you already know that a prenuptial agreement dictates how marital assets and properties will be divided and allocated in the event of a divorce. Spouses-to-be should consider creating a prenuptial agreement with the help and advice of a metro Detroit family law attorney.
If you’re already married, is there still any way for you to obtain the legal protection that a prenuptial agreement can provide? In Michigan, can spouses create their own “postnuptial” document which provides the same legal assurances that a prenuptial agreement offers?
The answer is yes. If you’ll continue reading, you will learn what has to be included in a postnuptial agreement, what the law requires for postnuptial agreements in Michigan, and why you should consider a postnuptial agreement for yourself and your spouse.
What Do Postnuptial Agreements Accomplish?
In every respect, postnuptial agreements accomplish precisely what prenuptial agreements accomplish. The only difference between a “postnup” and a “prenup” is that a postnuptial agreement is established in the course of the marriage rather than before the marriage ceremony.
When a couple is already married, if there is no prenuptial agreement, they may create their own postnuptial agreement with the guidance of a Michigan family law attorney. In fact, at least two attorneys will be required – one for each spouse.
The right family law attorney can explain what terms and provisions are enforceable and legal in postnuptial agreements. A metro Detroit divorce lawyer can also ensure that your postnuptial agreement will be honored by the Michigan courts as a legal and valid contract.
Why Are Postnuptial Agreements Growing in Popularity?
Postnuptial and prenuptial agreements have increased in popularity for a number of reasons. One reason is that many people today enter second marriages with a less idealistic and more practical attitude than they had during their first marriages.
There has also been a trend over the last several decades for people to marry later in life – after they’ve established their careers and achieved some financial stability.
For some couples, one spouse’s excessive spending or poor behavior might compel the other to seek a postnuptial agreement. But even when a marriage is good, a postnuptial agreement can help the partners identify their personal assets and define their obligations to each other.
Why Should You Consider a Postnuptial Agreement?
A thoughtful, properly drafted postnuptial agreement saves both spouses time and money – and it potentially helps you avoid a great deal of aggravation and acrimony – if your marriage ends with a divorce.
In the past, postnuptial agreements were thought to somehow “encourage” divorce. Postnuptial agreements generally were not recognized or enforced by the courts before the 1970s. Now, prenuptial and postnuptial agreements are routine and are considered practical and realistic.
A postnuptial agreement can settle ahead of time most divorce-related disputes: life insurance benefits, property rights, and alimony can all be resolved in advance. A postnuptial agreement can specify how assets are to be divided in the event of a divorce or after a spouse’s death.
What Does the Law Require?
Provided that nothing in a postnuptial agreement violates Michigan law, postnuptial agreements are valid and enforceable in this state if both partners voluntarily consent to the agreement’s terms and provisions after both have fully disclosed their properties, assets, and debts.
If you and your spouse decide to establish a postnuptial agreement, here is what Michigan law requires:
- Both spouses must disclose to one another a complete, accurate account of all debts, properties, and assets prior to signing the postnuptial agreement.
- Each spouse must have sufficient time to read and consider all of the details, terms, and provisions of the postnuptial agreement.
- Spouses should be advised by different family law attorneys. One lawyer should not be solely responsible for advising both partners.
How Will an Attorney Help You?
A postnuptial agreement in Michigan is a binding legal contract. You could face legal penalties for any failure to disclose fully your assets, properties, debts, or income. It’s smart to have your family law attorney help you with the financial disclosure documents.
In the metro Detroit area, a Michigan family law attorney can help you and your spouse draft a fair, enforceable postnuptial agreement. Your attorney can spell out for you the agreement’s terms, provisions, and potential consequences.
Can You Keep Personal Property Separate from Marital Property?
For some, a provision for separate property is the most important part of a postnuptial agreement. Most spouses comingle their assets and property, but postnuptial agreements can allow spouses to retain specific assets and items apart from the jointly-owned marital properties and assets.
In other words, a postnuptial agreement can allow you to retain at least some of the property and assets you owned before your wedding ceremony – again, so long as no provision of the postnuptial agreement violates Michigan law.
Can a Postnuptial Agreement Be Challenged in a Divorce?
Because no one can know the future, not all postnuptial agreements will necessarily remain in every spouse’s best interests over time. Postnuptial agreements are sometimes challenged by divorce attorneys, and some postnuptial agreements have been set aside by the courts.
In most divorces, if there is a postnuptial or prenuptial agreement, the agreement spells out how marital assets and properties are to be divided. If the agreement is disputed by either partner in the divorce, the court will ask and want answers to these questions:
- Was fraud or duress involved when the postnuptial agreement was signed?
- Did the spouses disclose their assets and properties fully before signing?
- Does any term or condition of the postnuptial agreement violate Michigan law?
When Should You Speak to a Family Law Attorney?
Nothing is a higher priority than your family and your future. You’ll need to have the advice and services of a good metro Detroit family law attorney if you are:
- about to be married and seeking to create a prenuptial agreement
- currently married and seeking to create a postnuptial agreement
- divorcing, considering, or anticipating a divorce
- seeking to challenge a prenuptial or postnuptial agreement in a divorce proceeding
If your fiancé is in favor of a prenuptial agreement, or if your spouse wants a postnuptial agreement, a family law attorney should review the document before you agree to it to make sure that you understand its terms, provisions, and conditions.
Do you need a postnuptial agreement? Every couple’s circumstances are unique, but a postnuptial agreement protects both spouses. It’s a genuinely smart move for couples in these unpredictable and uncertain times.