A postnuptial agreement is an agreement that a couple has entered into after getting married. Like a prenuptial agreement, the goal of a postnuptial agreement is to help spouses make their marriage work.
Let’s take a closer look at what a postnuptial agreement entails in Michigan and why it can be so hard to enforce.
How Does a Postnuptial Agreement Work?
The real purpose of a postnuptial agreement is to help the couple stay together. They do this by agreeing upon certain financial considerations so that the parties can reduce financial concerns and focus on saving their marriage.
Postnuptial agreements can include agreements over elements of a relationship such as:
● How the bills of the household will be paid
● How property should be divided in the case of a divorce or an early death, including which assets are to be separately awarded to one of the parties and which are to be split
● Laying out the how spousal support and attorney fees are to be addressed should the marriage turn into a divorce
There is a lot that goes into drafting and enforceable postnuptial agreement. Let’s take a look at what’s involved in a postnuptial agreement next.
What is Involved in a Postnuptial Agreement?
Getting a postnuptial agreement put together is not as simple as sitting down and writing out an agreement. There are certain steps that must be followed in order to ensure that the agreement is legal and enforceable.
Once you determine with the help of counsel that a postnuptial agreement is the right choice for you and your wife then you’ll have to make sure that:
● You and your wife fully disclose a full and accurate account of your income, assets and debts prior to signing the contract. Hiding or misstating income, assets or debts would make a postnuptial void should they ever be discovered
● You and your spouse have taken enough time to properly understand each detail of the contract so that you are fully aware of what you are each signing
● You and your spouse each have your own attorney; a separate attorney is important for ensuring that the agreement is negotiated and fair
● You and your spouse both sign the agreement of your own voluntary agreement, as one side forcing the other to sign is unacceptable
While certain aspects of a divorce or separation can be covered in a postnuptial agreement, it is important to note that it cannot include binding agreements on child custody or child support. This is because those issues always remain within the power of the family court to decide and it is not necessarily bound by what the parties contracted to at some earlier date. So even with a postnuptial in place, there is still plenty that a divorcing couple can get into heated arguments and legal battles over.
Can a Postnuptial Agreement be Struck Down?
Getting a postnuptial agreement enforced by a Michigan judge can be a lot harder to do than you would expect. The reason for this is primarily due to the way that Michigan courts want to support the institution of marriage.
Postnuptial agreements have a tendency to go unenforced because they encourage divorce. For a long time enforcing a postnuptial agreement was seen as approving for divorce and this goes against the public policy of preserving marriages. The main factor that can lead a court to believe the agreement was drafted to encourage the divorce is where it is unfair or extremely one sided for either party.
Ensuring that you have a postnuptial agreement that will be honored involves some clever thinking and very specifically chosen words. Otherwise, there are specific situations in which an agreement is more likely to be enforced such as where the agreement is limited to covering what happens in the event of a partner dying or when the postnuptial agreement is put into place to help reconcile a marriage rather than turn to divorce. In these cases, it’s much more likely to have your postnuptial agreement upheld.
Keep in mind that a postnuptial agreement must be clear, fair, and signed voluntarily. If an agreement does not meet these requirements then no judge will uphold it, even if it otherwise has no issues.
What Should My Partner and I Do if We’re Considering a Postnuptial Agreement?
If you haven’t been married yet, then you should consider a prenuptial agreement first. Since they are much easier to have honored, a prenuptial agreement can save you a lot of stress down the road. But if you’re already married and you’re considering a postnuptial agreement then it’s necessary to acquire the services of a couple of attorneys, one for each party.
Here at ADAM, we have attorneys that specialize in issues just like this. Our attorneys are prepared to discuss your specific circumstances and advise if a postnuptial agreement is right for you. If so, we can negotiate and draft an honest, fair and, most importantly, enforceable agreement to protect you moving forward. Give us a call today at (248) 356-2326.