Prenuptial Agreements in Michigan
Michigan divorces are more commonly involving prenuptial agreements. While they were once thought of as something only for the wealthy, a prenuptial agreement can be useful for couples of any income level. We’ll discuss what can be covered in a prenup, what can’t be covered or addressed, and who should have one.
What is a Prenuptial Agreement?
A prenuptial agreement in Michigan is a contract between two potential spouses, addressing what should happen in the event of a divorce. Sometimes called antenuptial agreements, they address issues such as property division and alimony.
Who Should Get a Prenuptial Agreement in Michigan?
Almost any couple could benefit from using a prenuptial agreement in Michigan. Whether you are a wealthy couple living on Grosse Ile or a blue collar family in Allen Park, you can still have a prenup. It allows you to predetermine how your marital estate will be divided should you get a divorce.
The most common reason would be to protect separate property. For example, if you enter the marriage with a house, and you and your spouse purchase another home together, you may want to retain ownership of your other home. Similarly, family heirlooms are another major item often included in these contracts.
Another example of where a prenuptial agreement is useful is if you enter the marriage with children. You can protect their inheritance by retaining ownership of assets in an antenuptial agreement.
Occasionally, couples will have one member working while the other stays home to take care of the children or the home. In this instance, the working spouse will agree to pay alimony in the event of a divorce.
Often, the reason for a prenuptial agreement is to avoid fighting. A rational thought-out agreement between the couple can help avoid the nasty disputes that arise when divorce is imminent.
What Issues Can Be Addressed By a Prenuptial Agreement in Michigan?
In Michigan a prenuptial agreement can cover anything not prohibited by law that doesn’t encourage divorce.
Some of the items that can be covered include:
- division of property, business interests, and financial accounts
- whether each spouse will keep their retirement accounts or whether they will divide each account
- each spouse’s ability to manage the couple’s assets during the marriage
whether one spouse will pay the other alimony, as well as the amount and duration of payments
how to divide life insurance proceeds
- support or inheritance of children from prior relationships
- what happens if one spouse dies during the marriage, and
- whether one or both spouses must make a will to carry out the terms of the agreement.
Can a Prenuptial Agreement Determine Child Custody in Michigan?
A prenuptial agreement can never determine child custody or child support in Michigan. The court determines child custody and support based on the best interests of the child and the parents’ ability to pay. Therefore, these issues can not be predetermined.
How Can I Ensure My Michigan Prenuptial Agreement is Enforceable?
Many states, including Michigan, have adopted the Uniform Prenuptial Agreement Act, which determines whether the antenuptial agreement is enforceable.
In Michigan, for a prenuptial agreement to be enforceable, it must:
- fair, equitable, and reasonable under the circumstances
- entered into voluntarily, with full disclosure, and all rights and waiver of rights fully understood
- be free from fraud, lack of consent, mental incapacity, or undue influence
- the facts and circumstances can’t have changed so much since signing the agreement so that it would be unfair or unreasonable to enforce it, and
- both spouses must sign the agreement.
Also, a court is more likely to enforce a prenup if the spouses fully disclosed their financial circumstances to each other before signing. Each spouse should prepare a financial statement, with the help of an accountant if necessary, and attach the report to the agreement. It’s also best that each spouse hires an independent attorney to review the document.
Courts will invalidate an agreement if one spouse commits fraud or deceit as part of the agreement. For example, if one spouse purposely hid assets from the other when the couple signed the contract, a court is likely to throw out the prenup. The spouse who wants to challenge the validity of the agreement has the burden of proving fraud or deceit.
A spouse may challenge a prenuptial agreement if the other spouse used threats to force the other to sign the document. A threat not to marry the other spouse isn’t enough to invalidate the contract. A spouse must threaten physical or psychological harm for a judge to invalidate the agreement.
If one spouse isn’t mentally capable of signing the prenup, a court may refuse to enforce it. For example, if someone was mentally deficient, was suffering from a mental illness, or was intoxicated while signing the agreement, that person would not have the mental capacity to agree, so the court won’t enforce it.
Judges may throw out an agreement if the circumstances have changed such that it would be unfair to enforce it. The fact that the agreement gives one spouse much more of the marital estate isn’t enough to make it unenforceable. If, for example, one spouse became disabled during the marriage and can no longer work, the court may require the other spouse to pay alimony, even if the prenup excludes it. Generally, it must be that type of an extreme circumstance for a judge to find an agreement unenforceable due to unfairness.
If a marriage has been annulled or voided, courts will only enforce a prenuptial agreement if it’s necessary to avoid injustice.
If you decide to amend or change the prenup after the marriage, both spouses must sign a written amendment to make any changes enforceable.
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