We’ve all heard of prenuptial agreements – agreements signed between two parties before they get married – but postnuptial agreements are a rare breed. They do exist, however, and are recognized in Michigan. They are essentially an agreement signed after the parties wed and are designed to protect property of an individual in the event of death, divorce, or separation.

The validity of postnuptial agreements in Michigan is a relatively new development as they have tended to be viewed by the courts as being against public policy. The reasoning was that a postnuptial agreement could act as an enforceable contract that encourages or otherwise moves the couple towards divorce or separation rather than staying together, which is the purpose of matrimony. There was also the fear that postnuptial agreements would benefit one party and be a substantial detriment to the other party.

A postnuptial agreement is valid and enforceable, however, when it seeks to further the marriage in some way, for example by requiring the parties to seek marital counseling before pursuing divorce or to take other steps that are designed to preserve, rather than break up, the marriage. It is also important that the agreement does not contemplate providing one party an advantage over the other in the event the couple should decide to split.

Postnuptial agreements are useful not just for binding two parties to more intensive measures to save the marriage. They can also be very helpful in protecting property of one party in the event of divorce without actually advocating or pushing for an actual divorce. They can also be useful for establishing alimony protection, again without encouraging a divorce. Essentially, these kinds of postnuptial agreements can act as late prenuptial agreements, which are not designed to end a marriage, but rather ensure the position of the parties relative to each other in the event of dissolution or death.

The emphasis in any postnuptial agreement must be that it is drafted and executed for the purpose of preserving the harmony of the marriage, and not for the inevitable dissolution of the union. It must also be inherently fair to both parties and not obviously lopsided in favor of one spouse over another. Part of this fairness must be that both parties enter into the agreement with full knowledge of the agreement and its ramifications, and ideally each have their own legal counsel to advise them as to the agreement’s effects on them individually.

Postnuptial agreements where one party coerces the other to sign by misrepresenting the contents of the agreement or otherwise fraudulently obtains their consent will be declared invalid. Similarly, postnuptial agreements that are created before circumstances change dramatically may not be enforced simply because the enforcement of the agreement under the new circumstances would be unfair to a party. For example, if one party wins the lottery and the postnuptial agreement states that any lottery winnings would belong solely to the party who won, the other party would be at a great disadvantage under the agreement. 

If you have questions about postnuptial agreements or any family law matter, contact the attorneys at Melissa Pearce & Associates, PLC. They have the knowledge, understanding, and experience to help walk you through these important decisions.

~Originally posted in December 2017~

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