Are Postnuptial Agreements Enforceable?
Updated: Sep 21
Ante-nuptial agreements (also known as pre-nuptial agreements, or a "prenup") are agreements entered into by couples before marriage that involve how the parties will divide property should the marriage end. Post-nuptial agreements are agreements entered into after marriage that specify how property will be held or potentially divided in case of divorce.
Historically nuptial agreements were thought not enforceable in the state of Michigan. It was not until the case of Rinvelt v Rinvelt 190 Mich. App 372 (1991) came about that some nuptial agreements were enforceable. It was and is still thought that agreements for division of property premarital and post nuptial were against the public policy of the State of Michigan because marriage was to be encouraged and divorce was not encouraged and it was believed that nuptial agreements were an inducement to divorce.
Rinvelt involved an ante nuptial (pre-nuptial) agreement, however, the findings in Rinvelt applies, as well, to post nuptial agreements. Post nuptial agreements originally had a little twist to them that isn’t in ante-nuptial agreements. Post-nuptial agreements were thought to be invalid and unenforceable if made while the parties were living together. There were several cases that muddied the waters on the validity of the requirement that parties living together could not inter into a valid post-nuptial agreement.
Recently, the published case of Skaates v Kayser #346487 (decided July 16, 2020) made the law very clear as to what is needed to have an enforceable post-nuptial agreement.
Where parties are separated or in the middle of a divorce and they either seek to (1) reconcile their marriage or (2) agree to settlement terms to be entered into a divorce judgment in the near future, or (3) where the married couple is not separated, but they enter into an agreement to determine property rights upon the death of one of the spouses, these agreements are enforceable.
What is not enforceable is a post-nuptial agreement entered into by a married couple who are not separated and establishes each spouse’s respective rights in the event of divorce. This result is because of the long standing Michigan public policy against enforcing post-nuptial agreements that promote divorce.
What the Skaates case tells us is that so long as the agreement does not involve division of property in a divorce context parties who are married and living together and wish to enter into an agreement on division of property during their marriage can do so and it is enforceable.
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