I am a divorce lawyer or family law attorney in Oakland County, Michigan. My office is centrally located near Rochester Hills and Clarkston in Auburn Hills, Michigan which is easily accessible to Troy, Birmingham, Rochester, Bloomfield, Oxford and Lake Orion.
The Issue
Can a person that is married sign a contract, similar to a prenuptial agreement, to protect some of his or her property from the other spouse in the event of separation, divorce or death?
The Answer
The answer is yes. Postnuptial agreements (which are like prenuptial agreements that the spouses sign during the marriage; i.e. after the wedding as opposed to before the wedding) are now valid in Michigan. In the case of Hodge v Parks, Mich App Docket No 308726, January 2, 2014 (For Publication) the Michigan Court of Appeals held that postnuptial agreements are valid. Previously the Court indicated that such agreements were against public policy which called into doubt whether such agreements could be drafted to be enforceable.
In Hodge, the parties were married in 1998, the wife filed for divorce in 2004 but they reconciled after signing a postnuptial agreement. The agreement specified certain property divisions and mandated that the parties receive marital counseling and included other provisions regarding preservation of the marriage. The reconciliation did not last and the wife filed for divorce a second time five years later. The divorce court, based upon previous case law, found that the postnuptial agreement was not enforceable, but the Appellate Court reversed this decision, specifically stating that the agreement is enforceable.
The court went through the following reasoning in upholding the contract between the parties. It recognized that under previous court rulings which held that a couple that is maintaining a marital relationship may not enter into an enforceable contract that anticipates and encourages a future separation or divorce. It further acknowledged that previous cases held that if the state were to enforce such agreements it would encourage separation or divorce, which is not an appropriate public policy and thus postnuptial agreements calculated to leave one party in a much more favorable position to abandon the marriage will not be enforced.
However, the court went on to state that postnuptial agreements are not invalid per se because some of these agreements may be intended to promote harmonious marital relations and keep the marriage together. In such situations, the public policy objection should not arise. The court then held that if a postnuptial agreement seeks to promote the marriage by keeping husband and wife together, Michigan courts may enforce the agreement if it is equitable to do so.
When examining the agreement at issue, the court found that it required intensive counseling, provided ways to help work on the relationship and did not contemplate a separation in the near future at the time the parties signed the agreement. It was actually made in connection with the dismissal of their prior divorce action and shows their intent to reconcile by requiring counseling, treat one another with love and respect and not allowing their respective children to interfere with their marital relationship. Finally, the agreement did not leave one party in a much more favorable position if the marriage ended and was relatively balanced in its distribution of property.
This means that parties may come to an agreement regarding property and alimony which will be enforceable if the agreement is reasonably fair and is not made in contemplation of divorce or separation. If someone is seeking to protect themselves with regards to certain property or alimony but does not want to get divorced, this may be a solution for that person.
The trick will be for the attorneys drafting the agreement to make sure that the document states that the agreement is intended to resolve differences that the parties may have with respect to property rights in order to maintain harmony in the marriage and that the agreement is not made in contemplation of divorce or separation. In addition, the agreement should not be too one-sided so that the court would believe that enforcing the agreement would not be inequitable. Finally, each party should have an attorney and fully disclose all property and debts to one another so neither spouse can later claim that there was an unfair advantage to the other spouse.