Prenuptial agreements have started to shake their poor reputation in the last few decades. A recent poll showed that 44 percent of singles and 49 percent of divorced people think having a prenuptial agreement is a good idea. No longer just a tool for the super wealthy, today both men and women of all income levels use prenuptial agreements to eliminate future financial uncertainty.
States have varying rules regarding prenuptial agreements. This article will explain Michigan’s definition of a prenuptial agreement, what it may include, and what makes the agreement enforceable.
A prenuptial agreement, also termed an “antenuptial agreement” in Michigan, is a contract that lets prospective spouses agree how certain issues will be decided if they divorce, such as property division and alimony.
Any couple that wants to predetermine how its estate will be divided if they divorce should consider getting a prenuptial agreement. You don’t have to have a lot of money or assets for a prenuptial agreement to make sense; the agreement can also determine how your future assets are split.
The most common reasons people want a prenuptial agreement are to protect separate property, to decide whether one spouse will pay the other alimony, and to decide how marital assets will be divided. If a spouse has children from a previous relationship, he or she can use a prenuptial agreement to protect their inheritance. Sometimes, couples agree that one spouse won’t work and agree that the working spouse will pay alimony if they divorce. One or both spouses may have a business that they don’t want divided or sold in the event of divorce. Others may simply want to avoid fighting over how assets will be split if they divorce by agreeing on these issues prior to marriage when they get along well.
In Michigan, a prenuptial agreement can cover anything not prohibited by law that doesn’t encourage divorce.
Prenuptial agreements can cover any of the following:
A prenuptial agreement can never determine child support or child custody in Michigan. Since child support is based on children’s needs and their parents’ ability to pay, courts won’t allow spouses to agree on a child support amount ahead of time. Also, judges determine child custody based on each child’s best interests at the time that parents separate. Parents can only agree on child custody and child support at the time they separate, subject to court approval.
The Uniform Prenuptial Agreement Act is a set of rules many states use to determine whether a prenuptial agreement is enforceable. Maryland is not one of those states, however, and has its own rules to determine an agreement’s validity.
In Michigan, for a prenuptial agreement to be enforceable, it must be:
Also, a court is more likely to enforce a prenup agreement if the spouses fully disclosed their financial circumstances to each other prior to signing. Each spouse should prepare a financial statement, with the help of an accountant if necessary, and attach the statement to the agreement. It’s also best that each spouse hires their own attorney to review the document.
Courts will invalidate an agreement if one spouse commits fraud or deceit as part of the agreement. For example, if one spouse purposely hid assets from the other when the couple signed the agreement, a court is likely to throw the prenuptial agreement out. The spouse who wants to challenge the validity of the agreement has the burden of proving fraud or deceit.
A spouse may challenge a prenuptial agreement if the other spouse forced him or her to sign the agreement by using threats. A threat not to marry the other spouse isn’t enough, however; a spouse must threaten physical or psychological harm for a judge to invalidate the agreement.
If one spouse isn’t mentally capable of signing the prenuptial agreement, a court may refuse to enforce the agreement. For example, if someone was mentally deficient, was suffering from a mental illness, or was intoxicated at the time he or she signed the agreement, that person doesn’t have the mental capacity to enter into an agreement, and the court won’t enforce it.
Judges may throw out an agreement if the circumstances have changed such that it would be unfair to enforce it. The fact that the agreement gives one spouse much more of the marital estate isn’t enough to make it unenforceable. If, however, one spouse became disabled during the marriage and can no longer work, the court may require the other spouse to pay alimony, even if it’s prohibited by the agreement. Generally, it must be an extreme circumstance for a judge to find an agreement unenforceable due to unfairness.
If a marriage has been annulled or voided, courts will only enforce a prenuptial agreement if it’s necessary to avoid injustice.
If you decide to later amend or change the prenup, both spouses must sign a written amendment to make any such changes enforceable.
If you have additional questions about Michigan prenuptial agreements, contact a local family law attorney for advice.