Prenuptial Agreements in Michigan

Contemplating a marriage? Should you have a Prenuptial Agreement? 

In my practice, I have represented many people who wish they had a prenuptial agreement before getting married. In the past, prenuptial agreements were very unusual, but in recent years I have been negotiating prenuptial/antenuptial agreements in more and more cases. Usually a prenuptial agreement is used in a second marriage where people have children from a first marriage, and property that they want to protect.

Recently I have negotiated and drafted several prenuptial agreements involving first marriages where one of the parties has substantial wealth, or comes from a very wealthy family. The law in Michigan governing prenuptial agreements is clear that they are enforceable, not only in the event of death, but also in the event of divorce.

Key questions that must be answered as to the validity of a prenuptial agreement are as follows:

1. Was the agreement obtained through fraud, duress, mistake or misrepresentation, or non-disclosure of a material fact?
2. Was the agreement unconscionable when entered into?
3. Have the facts and circumstances changed since the agreement was signed, so as to make its enforcement unfair and unreasonable?

The way to make sure that a prenuptial agreement is valid is to have attorneys involved representing both parties. The agreement should clearly set forth what the terms and conditions are. Typical examples include provisions that property that is premarital is to be separate and not to be part of any divorce settlement. Often any growth in premarital assets are considered separate. There can be an agreement that will bar alimony. The agreement often will state in the event of death the property is to go to heirs, often children from a prior marriage. It is important that everything be spelled out clearly, and that there be exhibits attached listing the property that each party is bringing into the marriage.

Courts almost always uphold prenuptial agreements and in litigation I have found that even if the prenuptial agreement has been entered at the last minute, or where there has been a change in circumstances, and one party has had a tremendous increase in wealth and the other party has not, the courts are still very reluctant to set them aside.

This is an area where advice from an expert is critical as to negotiations and drafting. While people marry for love among other reasons, and the idea of a prenuptial agreement sounds very cold and businesslike, if the marriage fails, it is an invaluable tool in the event of a future divorce, as well as in the event of death.

At Family Law of Michigan, we can assist you in negotiating and drafting a prenuptial agreement, as well as handling litigation in the event there is an issue of enforcement in the event of a divorce or death.