Marriage is hard. There’s no way around it. A healthy marriage takes effort and work. But, of course, it is incredibly rewarding. One way that marriage can be made a little easier is to consider writing a postnuptial agreement.

Just what is a postnuptial agreement? We’ll look at that, and how it compares to a prenuptial agreement, in just a moment but the short of it is that it is an agreement that two spouses enter into that helps them have a happy marriage. To see what we mean, we’ll look at what you can include in a postnuptial agreement. However, we’ll also look at why it’s important to consider what you include, based on the attitude of the Michigan courts, because many postnuptial agreements aren’t enforceable because of certain clauses that were added.

What Is the Difference Between a Prenuptial and a Postnuptial Agreement?

While their names may give you a clue about what makes them different from one another, it is worth taking a look at the difference between a prenuptial and postnuptial agreement.

  • Prenuptial Agreements: A prenuptial agreement is an agreement that a couple enters into before they get married. It covers important decisions such as how assets should be divided, how financial accounts and business interests are split, whether or not either or both spouses have to have a will, how life insurance policies are to be divided, and a lot of other very important information that can make the marriage run smoother. By considering these things before the marriage, the couple enters into the marriage on fair, reasonable, and honest terms.
  • Postnuptial Agreements: Postnuptial agreements are entered into after a couple has gotten married. They are used to help alleviate the tension caused by financial concerns. Other things that are covered by a postnuptial agreement are what happens to property division, debts, spousal support and other financial matters in the event of a divorce.

What Should Be Included In a Postnuptial Agreement?

Postnuptial agreements should focus on making things easier for either spouse by laying out what should happen with financial matters in the relationship in the event of a divorce. One of the big topics that cause many people to create a postnuptial agreement is the matter of property division, and concerns about what will happen to their property if they get divorced.

A postnuptial agreement can be used to outline what terms the parties have agreed to in the case of a separation with regards to property division and spousal support. Issues like the disposition of property and things can be addressed in a postnuptial agreement, but these are difficult to get right. In Michigan, it isn’t typically a very good idea to include any language that seems to suggest that divorce was planned for. If it seems obvious that the divorce was imminent, or coming right away, after the postnuptial was signed, it will likely be found to be invalid and not enforceable by a court. Courts do not like to enforce postnuptial agreements that were written in contemplation of a pending or soon to occur divorce.

It is also worth noting that there are some things that can’t be included in a postnuptial. For example, child custody or child support decisions can’t be decided with a postnuptial agreement. Similarly, a postnuptial agreement should not include terms that try to regulate routine aspects of the marriage; these should be worked out with the spouses between themselves.

Why Are Postnuptial Agreements Difficult to Enforce?

Michigan courts want to support the institution of marriage and in doing so they’ve made it harder for a husband and wife to create a postnuptial agreement that will be enforceable within the courts if the couple gets divorced. Essentially, if the postnuptial agreement seems like it is encouraging divorce then it is unlikely to be honored. Or, if the document seems to be in contemplation of a divorce it will likely not be enforced by a court.

This is why it is incredibly important to consider the language used when drafting your postnuptial agreement. If the language could be interpreted as encouraging divorce then it’s recommended that you try experimenting with different ways of saying what you mean to see if the association to divorce can be limited or eliminated altogether.

There are some situations where it is more likely for a postnuptial agreement to be enforced. Situations such as:

The spouses have separated or filed for divorce action but instead of divorcing they agree to reconcile the marriage under terms listed in the postnuptial agreement. This allows a bargained for exchange which will help with the validity of the agreement. In this case, the couple agrees to sign the postnuptial agreement in exchange for canceling the divorce case. This is better than two people just signing such an agreement for no apparent reason.
When divorce is planned and so they enter into an agreement for the purpose of having it become part of the divorce judgment
Most commonly, when both parties remain married and ensure that the language of their postnuptial agreement is focused on what should happen in the event of the untimely death of one spouse rather than what should happen upon divorcing

With postnuptial agreements here in Michigan, the focus is on helping to make a marriage work as smoothly as possible. If you and your spouse are looking to draft a postnuptial agreement then it is in your best interests to consider it from this angle only.

Can An Attorney Help With a Postnuptial Agreement?

Working with an attorney can be one of the easier ways of coming up with a postnuptial agreement that will have the best chance of being honored by the courts. It is a good attorney’s business to understand how the courts will view a document of this nature and they’ll be able to advise on what language should be changed, what can and can’t be enforced, and any number of questions you may have about the process.

If you and your partner are considering drafting a postnuptial agreement, reach out to the American Divorce Association for Men to see how one of our experienced members could be of service to make you and your partner’s life easier.