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Michigan Family Law Blog

Monday, August 28, 2017

My Spouse Wants a Post-Nuptial Agreement - Is This a Good Idea?

When you get married it is natural and advisable to think about what you want your marriage to look like. Even in the happiest of marriages, a spouse might want to set some things down in writing. The most important question to ask when your spouse asks you to sign a post-nuptial agreement is: WHY? There are many reasons to enter into a prenuptial agreement, but once you are married, you should question why your spouse wants to change the rules.

Make sure you understand why your spouse wants you to sign a post-nuptial agreement, and get good legal advice before you agree to anything. Under Michigan law, many post-nuptial agreements are invalid as a matter of law, for the reason that they are against public policy. If you find yourself being asked to sign one of these agreements, it is advisable that you talk with an experienced post-nuptial agreements lawyer first.

Under Michigan law, when a couple divorces, the property distribution must be fair and equitable. Since you are already supposed to receive a fair and just result under the law, you should question what advantage your spouse might be seeking by using a post-nuptial agreement. Your spouse might be trying to lock down an unfair or inequitable property distribution. Your spouse might be planning to divorce you, and wants to deal with the financial fall-out before dropping the news on you.

There are three main categories of post-nuptial agreements in Michigan, and not all of them are enforceable.

  1. A married couple separates. They enter into a formal agreement. The court will consider it a settlement agreement. It is enforceable as long as it is valid.
  2. A married couple lives together. They want to continue living together, but they want a written agreement as to inheritance rights. If the agreement is fair and equitable, and if both spouses have given consideration, the agreement is valid. Consideration means that each party either agreed to do something they had a legal right not to do, or agreed not to do something they had a legal right to do.
  3. A married couple is living together. They want to enter into an agreement that will govern their rights if they divorce down the road. This agreement is not valid under Michigan law. Michigan bases this rule of law on the public policy of not encouraging divorce.

Here are the key topics you should explore if your spouse wants you to sign a post-nuptial agreement:

  • Your spouse should make full financial disclosure of all assets and debts. You should be allowed to access this information directly, including marital as well as separate assets and debts.
  • Have a candid discussion about problems in the marriage and ask if your spouse is planning to divorce you.
  • Ask if your spouse is currently seeing someone else or has someone in mind.
  • Insist that your spouse explains in detail how the proposed post-nuptial agreement will be better for you than the “fair and equitable” property distribution you would get from the court.

If your spouse asks you to sign a post-nuptial agreement, you now have adversarial interests. Your spouse has almost certainly gotten legal advice. You should have a lawyer on your side, too. Michigan law is tricky on the issue of post-nuptial agreements. If you are thinking about divorce, talk to divorce lawyer Cameron C. Goulding for a consultation.


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