Prenuptial & Post Nuptial Agreements
Having an agreement in place in the event of a marriage’s failure may seem like a poor position from which to start a marriage. However, prenuptial and postnuptial agreements can provide certainty in the otherwise unpredictable event of a divorce. Whether you are considering obtaining a prenuptial or post nuptial agreement, or if you have been asked to sign such an agreement, having legal counsel is crucial.
A prenuptial agreement is a legal contract signed before a marriage. Michigan law defines property obtained, earned, or accumulated during marriage to be part of the marital estate. The marital estate is subject to equitable division in a divorce. Courts have broad discretion to consider any assets accumulated or income earned prior to the marriage to be “marital property” if it is comingled with marital property or used for the benefit of both spouses during the marriage.
A prenuptial agreement allows the parties to agree to a specific division of the marital estate prior to the marriage. However, the agreement will only be deemed valid if it complies with a number of requirements, including the following:
- It must be reasonably fair and equitable;
- Agreement must be voluntary;
- Both parties must fully disclose their assets and income;
- The agreement must be free of fraud and cannot break state of federal laws
- Both parties must be mentally competent and neither can use coercion to force the other to sign the agreement; and
- The agreement must be signed by both spouses.
Additionally, if it comes time to enforce the agreement, the facts and circumstances of the marriage and/or both individuals cannot have changed so much as to make enforcement unreasonable or significantly unfair to one spouse.
A postnuptial agreement is similar to a prenuptial agreement, except signed after the marriage. Historically, postnuptial agreements have not always been upheld, as at common law, agreements in anticipation of divorce were not enforceable as being against public policy favoring marriage. However, recent court decisions have begun to unwind that prohibition.If you are contemplating marriage and wish to explore obtaining a prenuptial agreement, or if you have been asked by your partner to enter into such an agreement, having experienced legal counsel is important. The attorneys at Neumann Law Group are ready to discuss your matter in a free consultation.