What are post nuptial agreements and are they valid?
A postnuptial agreement is basically a prenuptial agreement that a husband and wife prepare and sign after they are married. In my practice, located in Rochester (Auburn Hills), Oakland County, Michigan, I refer to these documents as “mid-marriage agreements” because the couple is actually signing these agreements during the middle of their marriage when they are not ( at least openly). considering impending divorce or separation. If the couple is planning to divorce or separate in the immediate future, then this is known as a “separation agreement” or “asset settlement agreement” and it is advisable to first file for legal separation (separate maintenance) or divorce before to sign. such contract may otherwise be invalid as explained below.
It is my opinion that a properly drafted postnuptial agreement is valid in Michigan and will be upheld by the courts. In a 2008 Michigan Court of Appeals case, wright vs. wright, 279 Mich App 291 (2008), the author of the opinion, Justice O’Connell, stated that such agreements were against public policy. However, at the Family Law Institute’s 9th Annual Seminar on November 12, 2010, Judge O’Connell stated orally and in his written materials that this was “oops” and that he was wrong to say so. way.
In my opinion, what this means is that the agreement in the Wright The case was not valid because it encouraged the husband to divorce his wife, it was drafted in contemplation of divorce since the particular agreement in that case was against public order, not all post-nuptial agreements. In fact, I have written “midnuptial” agreements that the parties agreed to follow when they divorced, which avoided the litigation requirement.
The basic requirements for postnuptial agreements are the same as prenuptial agreements, however there are at least two additional issues that need to be addressed. Those two additional problems are:
- consideration or what is given or negotiated to support the contract and make it legally binding and
- the agreement must not be made contemplating divorce (whereas a prenuptial agreement must be made contemplating marriage).
For any contract to be valid and legally binding, there must be a consideration, in the example of an employment contract, one party agrees to work for the other and the other party agrees to pay the worker for that work, this is called consideration. In a prenuptial contract the consideration is the exchanged promise to marry, each person agrees to marry the other and this exchange of promises is the consideration to support the contract. In the post-nuptial agreement, the person who draws up the contract must state in the document the consideration that will support it and make it legally binding.
Promises exchanged cannot be for one party not to file for divorce, leave the marital home, or remain in the marriage. The family law attorney drafting the agreement should write the agreement very carefully and indicate that the intent of the parties is to reach an amicable agreement on property issues and not to contemplate or facilitate divorce or separation. If a court believes that the intent of the contract was to facilitate an impending divorce or separation that is against public policy in Michigan and the written agreement will not be upheld by the court. This does not mean that the agreement cannot discuss the divorce or separation, however, again, the divorce lawyer who writes or draws up the agreement must be very careful to avoid the appearance that the agreement would encourage one of the people to file. divorce or facilitate the separation of the couple. .
A postnuptial agreement will be reviewed by the court under a fair and equitable standard which is a legal term of art and involves the procedure as explained below and should not be taken literally. While a separation agreement or property settlement agreement is reviewed under the general principles of contract, which means that in most cases, even if it is not fair to one party, it is still binding as long as procedural requirements are met.
The other requirements (which are the same for prenuptials and postnuptials) for a valid and binding “midnuptial” (or prenuptial) are:
The agreement cannot be obtained by fraud, duress or error,
- The agreement cannot be unreasonable/unfair when it is signed,
- The facts and circumstances cannot have changed so unforeseeably since the date of your signature that it would be unfair and unreasonable to enforce it,
- both parties must enter into the agreement voluntarily and
- both parties must disclose all assets and facts before signing the agreement.
The above factors include terms that are legal terms of art and include legal procedures and definitions, so they do not necessarily mean what they would mean in common use of our language, particularly with regard to “fairness” and “foreseeable.” The above five factors are complicated and are a separate topic from each other.
If the family law attorney or divorce attorney carefully drafts the postnuptial agreement, then it should be enforceable in Michigan and can be a valid substitute for a prenuptial agreement if you did not obtain one prior to the marriage.
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