Getting a prenuptial agreement that will stand up in court is a multi-step process in Michigan. These agreements, also called antenuptial agreements, control what will happen to the assets of the two people who are about to get married if the marriage terminates by divorce, separation, or annulment, or when one of the spouses dies.
A prenuptial agreement is a contract, so it requires the same elements as any other contract, like agreeing to the terms, having signatures, and an absence of things like duress. In addition, Michigan law sets out requirements unique to prenuptial agreements. A Michigan divorce attorney can prepare a prenuptial agreement and help you navigate through the multiple stages of the process.
The typical steps for getting a prenuptial agreement are:
- One soon-to-be-spouse (party #1) has a lawyer draft a prenuptial (antenuptial) agreement and financial disclosure.
- Party #1 gives the written agreement and financial disclosure to the person they are about to marry (party #2).
- Party #2 takes the agreement to a different lawyer to review and advise party #2 about the paper's validity and fairness.
- Party #2 make suggestions about changing some of the terms and gives those proposals with their financial disclosure to party #1.
- When they get a written document that satisfies both of them, the parties sign the prenuptial agreement. Each party keeps a signed original agreement and both sets of financial disclosures.
Why People Want Prenuptial Agreements
Common reasons people enter into prenuptial agreements include:
- One or both parties have children from prior relationships and want to protect their eventual inheritance.
- One or both soon-to-be-spouses have substantial earnings or assets.
- Either party has concerns about the other spouse possibly being a “gold digger.”
- A party has ownership in a company.
- One or both parties own rights to books, music, copyrights, software, apps, or other intellectual or intangible property.
- Either party anticipates a substantial inheritance in the future.
- A party went through a bitter or expensive divorce and wants to avoid a repeat performance.
- Either party prefers to keep their private financial and other information out of the courts as much as possible, in the event the marriage does not last.
Whatever the motivation, a prenuptial agreement can give the parties control over what happens to them and predictability about the future.
The Nuts and Bolts of Prenuptial Agreements in Michigan
A court can declare a prenuptial agreement invalid if it does not meet the requirements to be valid. Here are some of the necessary elements:
- The agreement must be in writing. Oral prenuptial agreements are not enforceable.
- The document must get signed by both parties before the marriage ceremony takes place. Be aware that prenuptial agreements signed within days of a wedding are suspect.
- The parties must fully disclose their assets and debts. Failure to provide sufficient detail can void the agreement.
- If a judge later finds that the agreement is unfair, he can refuse to enforce it.
- The terms of the agreement must be “bargained for;” in other words, the parties had the opportunity to negotiate the terms in good faith and make changes as desired before signing. If a judge decides that one party dictated all the terms and refused to agree to any reasonable changes, the agreement can be void.
- Disclosure is not limited to telling the other party about your current assets and debts. Full disclosure also means revealing the details of things a person anticipates, even if they have not yet happened. For example, if someone holds a winning multi-million-dollar lottery ticket but has not yet cashed it in, he has to disclose the upcoming windfall.
Some prenuptial agreements increase the amount of money or assets a person can get from the other based on the length of the marriage. These escalator clauses can, for example, provide a spouse none percent of the other spouse's assets if the marriage lasts less than one year, 10 percent if the marriage ends after two years, and so on, until eventually, usually after 10 years, the spouse could receive as much as they would receive through intestate succession (if the other spouse died without leaving a valid will or trust.)
A Michigan divorce attorney can answer your questions and advocate for you in the prenuptial agreement process. Contact us today.
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