Pre and Post Nuptial Agreements

Frequently Asked Questions

Can I download a Pre-Nuptial Agreement from the internet and fill it out and have my fiancé/spouse sign?
Yes.  But this would be a classic example of being penny wise and pound foolish.  First, in a divorce case it is very likely the court would not enforce this type of agreement as the circumstances of its creation and execution could be successfully challenged by your spouse as obtained through fraud, duress, misrepresentation or non-disclosure of a material fact.   By hiring an attorney you have the advantage that he will draft, witness and counsel you on the requirements of Michigan law to assure that the document will stand up in court.  Your attorney would be personally available to state that the document was signed free of fraud, duress, mistake, misrepresentation or non-disclosure of fact and that your spouse’s signature was done voluntary and of their own free will with knowledge of the nature and extent of the property and waiver of his or her statutory rights.  

Can the prenuptial agreement address issues of future inheritances? 
Yes.  The agreement can involve and/or consider the possibility that one of the parties will receive future gifts or inheritances. 

Can the pre-nuptial agreement decide spousal support in case of divorce?
Generally yes.  With the warning that the answer is “no” if circumstances change over time.  For example if the agreement bars spousal support but it turns out that the marriage lasts ten years or more, the court has the authority to disregard the agreement and grant spousal support in contradiction to the agreement if the spouse is unable to provide for his/her own support. 

Do both my fiancé/spouse and I have to be represented by separate attorneys?
Ideally yes.  The safest way to prevent one party from claiming fraud, non-disclosure, etc. in a later divorce case is to have independent counsel review the agreement.  If the parties do not want to obtain separate counsel then in the very least there must be an acknowledgment signed by one of the parties that they were offered the opportunity to obtain independent counsel and voluntarily chose not to do so. 

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Premarital (before marriage) and Postnuptial (after marriage) Agreements are fully legal and binding in Michigan provided they are done properly.  If not done properly then you will not only put your fiancé /spouse through a difficult and sobering experience but you would have wasted your time and money and perhaps lose a significant portion of your property.

Who are good candidates for Pre and Post Nuptial Agreements?   
In my opinion the following are those most appropriate in order from most to least.

1. Second marriages between older couples where there are children from prior marriages.  It is ultimately tragic when the widower remarries, fails to provide for his offspring, dies before his new wife (which is statistically likely) and the new wife inherits all the widowers’ property to the exclusion of his children.
   
2. Marriages where there is a significant disparity of property and assets and where there is no likelihood of children being born and the parties want to keep premarital property separate.
3. Marriages of convenience where the parties acknowledge that things may not work out and want to avoid litigation over disposition of property and spousal support in case of death or divorce.  
4. Pre and Post Nuptial Agreements are not appropriate for young couples just starting out, for couples who have little or no property or significant assets or for couples who already have children together. 

To make a legal and binding Pre or Post Nuptial Agreement in Michigan, it must be in writing, signed by the parties, and notarized.  Equally important Michigan courts have further reqiured that the agreement must not be obtained through fraud, duress, mistake or misrepresentation or nondisclosure of material facts, and that circumstances have not changed since the agreement was signed in such a way to make the enforcement of the agreement unfair and/or unreasonable. The agreement may be found unenforceable if any of the above factors exist.  It is very important that the agreement clearly recites the facts and circumstances of the parties, contains a complete disclosure of each of the parties assets and liabilities, and also recites the circumstances of the negotiations including the age, health and marital history of each party.