I am an Oakland County divorce lawyer. My office is located in Auburn Hills at I-75 and University Drive, easily accessible to Clarkston, Holly, Troy, Bloomfield and Rochester Hills. I believe that prenuptials are very useful for anyone contemplating marriage as it is a way to help plan for the future and investigate the expectations that each person has in the marriage. If one does not obtain a prenuptial the question becomes whether a “postnuptial” may be used.
Are postnuptial agreements valid in Michigan if one does not get a prenuptial before the marriage?
The answer was no; it is now yes, under certain circumstances. In the matter of Van v Van, COA 323294, December 8, 2015 (Unpublished), the parties entered into an agreement after the wife filed for divorce which they reduced to writing and signed regarding the division of the parties internet companies. The husband at the time of the entry of the judgment of divorce attempted to claim that this was not an enforceable agreement, in part because it was in essence a postnuptial agreement and void as against public policy.
The court pointed out that postnuptial agreements entered into after the parties have separated or filed for divorce are not void. In fact, in such circumstances, the court favors upholding property agreements negotiated by the parties when a divorce is clearly imminent. Such an agreement is valid if it is fair, equitable and supported by sufficient legal consideration. It should be noted that fair is a relative term when handling divorce matters, it does not mean exactly even or perfect and the courts have considerable discretion when placing a value on property.
Here the agreement was actually reached after the wife filed for divorce. The court held that absent fraud, coercion or duress, the adults in the marriage are free to decide what is an appropriate division of property and the court should not rewrite such agreements. Coercion or duress in this context must be extreme, threatening to file for divorce if the person does not sign the agreement is not sufficient, think more along the lines of a gun to the head scenario.
In this case, it appears pretty clear that the court should uphold the agreement as it did even under the existing law. The next step is to define what the court means by “separation”. The courts have not fully defined this term. Clearly it should mean that if the parties are physically separated then the parties may enter into a postnuptial agreement that is valid and binding.
If the parties married and are doing well, then a postnuptial would be void as against public policy under the existing law. It is my argument that physical separation should not be required and that a future court decision will affirm that it is not required in Michigan. Rather, the parties can state in the agreement or prove through other avenues that the parties are having difficulty in the marriage such that the parties are not currently relating to one another as husband and wife to the extent that divorce is a real possibility and the agreement is reached in order to allow the parties to remain married. This is my prediction for the next step for postnuptial agreements in Michigan.