Should I Get a Postnuptial Agreement Before My Divorce?

If you are thinking about filing for divorce and are concerned about how property will be divided, you could consider a postnuptial agreement in order to contract with your spouse about how assets and debts will be distributed if the two of you separate and later get divorced. Post-nuptial agreements can be important tools for individuals who should have entered into a premarital agreement (also known as a prenuptial agreement) before the marriage but did not do so. However, if you are considering a postnuptial agreement, it is important to understand when these documents are enforceable and when they are not before you meet with your lawyer.

What is a Postnuptial Agreement?

In order to understand the utility of a postnuptial agreement and when one can be enforced, first you have to know exactly what a postnuptial agreement is. Simply put, a postnuptial agreement is a type of contract that a married couple enters into after the marriage. It is similar to a prenuptial agreement in that it allows the two parties to come to an agreement about certain financial issues like property division and alimony, including the exclusion of certain marital assets from property division in a future divorce. Like prenuptial agreements, postnuptial agreements cannot involve negotiations about child support.

However, creating an enforceable prenuptial agreement can be complicated and the current state of the law is very unclear.

What Makes a Postnuptial Agreement Enforceable Under Michigan Law?

To be clear, Michigan law does not simply allow a married couple to enter into an enforceable postnuptial agreement about any and all issues. As we noted above, postnuptial agreements cannot include child support. At the same time, there are a number of reasons that a postnuptial agreement may be unenforceable, even if the types of issues around which the parties reached an agreement lawfully can be included in a postnuptial agreement. One of the most recent Michigan cases to address the enforceability of postnuptial agreements is Hodge v. Parks (2014).

When is a postnuptial agreement unenforceable? For example, if one of the parties did not make a full disclosure in order to convince the other party to sign the postnuptial agreement, it may be unenforceable. Or, if one of the parties was convinced to sign the agreement under duress, it likely will not be enforced. A court can even decide not to enforce a postnuptial agreement if it would be significantly unfair to one of the parties in certain circumstances.

In some cases, a single clause of a postnuptial agreement may be unenforceable, in which case that clause may be stricken while the rest of the agreement will be upheld. However, it is always better to work with a lawyer to ensure that you have an enforceable postnuptial agreement.

Contact a Divorce Attorney in Michigan

Are you considering divorce but concerned about property division and alimony? Is there specific marital property that you want to keep out of the divorce proceedings? Drafting a postnuptial agreement could help, and an experienced divorce attorney in Michigan can assist you. Contact the Law Offices of Michael A. Robbins to learn more about the services we provide to individuals who are getting divorced in Michigan.