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Prenuptial and Postnuptial Agreements, do you need one?

Nuptial Agreements can be broken down into two main categories, Prenuptial agreements (also known as "pre-nups" or "prenup") and Postnuptial agreements are both agreements that determine how assets would be split in the event of a divorce. They are both very different and can have differing levels of protection.

Prenuptial Agreements - These agreements are drafted and signed BEFORE a couple gets married and, if at all possible, any agreement should be a Prenup as they are enforceable while a Postnuptial Agreement may not be (see below). A Prenup allows a couple to decide how they will split up their marital property should they divorce in the future. Both parties usually have an attorney advising them on their rights when negotiating a prenuptial agreement. There are some general basic requirements:

  • The Agreement must be obtained without fraud or duress

  • All assets and liabilities of both parties must be disclosed

  • The agreement itself must not be unconscionable when executed

  • The Agreement must be fair and not subject to change of circumstances to make its enforcement unreasonable

Additionally, when drafted, a contract must include "consideration". For a prenuptial agreement, the marriage itself is considered "consideration", however, as you'll see below, this can cause a problem for an enforceable contract with a postnuptial agreement. Child support, Child Custody and parenting time can NOT be put into a prenuptial agreement.

Is it enforceable? In general, yes, a prenuptial agreement is enforceable, however, Allard v. Allard, 318 Mich App 583 (2017) also recognized that a prenup cannot deprive a trial court of equitable discretion authorized in MCL 552.23(1) and MCL 552.401. What does this mean? This means the enforceability of a prenup may be at the discretion of the Court! An agreement is always considered more enforceable if attorneys are involved for both parties as an attorney can review the rights of each party.

Postnuptial Agreements - A "postnup" is an agreement that is signed AFTER you are married. A postnup may not be enforceable by the Court and can be seen as "buyer's remorse" after a marriage. The agreement considers the same things as above, however, there must also be sufficient consideration in the signing of this contract that is NOT the marriage itself, since the marriage itself has already taken place. It also cannot be done long after the marriage in "contemplation of divorce".

Do you need one? The laws of the state you live in will usually protect most pre-marital property in the event of a divorce. It's important to remember that when you marry, you become one legal joint marital entity. Your income belongs to the marriage, not yourself personally. Discuss with an attorney whether you actually need a nuptial agreement.

Attorney Allison Greenlee Korr handles cases in Kalamazoo, Battle Creek and all surrounding counties, call today for a consultation.269-381-4471


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