Prenuptial and Postnuptial Agreements
These agreements decide in advance what would otherwise be decided later by a court, at a point when the parties still trust each other enough to be reasonable.
A prenuptial agreement is made before marriage. A postnuptial agreement is made during it. Both address the same questions: what is treated as separate property, how property acquired during the marriage is handled, and whether spousal support is limited or waived.
They are not only for the wealthy, and they are not a prediction that the marriage will fail. The people who most often benefit are those bringing a business into a marriage, those with children from a previous relationship whose inheritance they want to protect, those marrying with substantially different assets or debts, and those where one spouse will step back from a career.
What makes one hold up
An agreement is only worth what it is worth when challenged, and it is challenged at the worst possible moment. Michigan courts will examine how it was made, not just what it says.
- Full disclosure. Each party must know what the other actually has. Concealing assets is the most reliable way to have an agreement set aside.
- Independent counsel. Each party should have their own lawyer. One lawyer cannot properly act for both, and the absence of independent advice is a standard ground of attack.
- Time. Presented well before the wedding rather than days before it. An agreement produced on the eve of a ceremony invites an argument about pressure.
- No coercion. Genuine opportunity to consider, take advice and negotiate rather than sign as presented.
- Fairness. An agreement leaving one spouse destitute while the other retains everything is vulnerable, particularly where circumstances have changed substantially since signing.
- Proper execution. In writing and signed with the formalities observed.
Custody and child support cannot be fixed in advance by agreement. Those are determined by the best interests of the child and by the support formula at the time, and a court is not bound by what the parents agreed before the child existed.
What these agreements address
| Can generally be addressed | Cannot be fixed in advance |
|---|---|
| What each party brings in as separate property | Child custody and parenting time |
| How property acquired during the marriage is treated | Child support |
| Treatment of a business and its growth | Terms that would encourage or reward divorce |
| Whether spousal support is limited or waived | Non financial obligations of the marriage |
| Protection of an inheritance or family assets | |
| Responsibility for debts brought into the marriage | |
| Provision for children from a prior relationship |
Agreements made during the marriage
Postnuptial agreements are used where circumstances changed after the wedding: a business started or inherited, a significant inheritance received, one spouse leaving work, or a couple reconciling after a separation and wanting terms settled.
They receive closer scrutiny than prenuptial agreements, because spouses owe each other duties that engaged couples do not, and because the bargaining position between married people can be less balanced. Disclosure and independent representation matter even more here.
How this work runs
- Objectives identifiedWhat is actually being protected and why, which usually narrows the agreement considerably from what was first imagined.
- Disclosure preparedA full and documented schedule of assets, debts and income for both parties, attached to the agreement.
- Drafted and negotiatedWith the other party's counsel, allowing genuine time for review well before any wedding date.
- Executed properlySigned with the formalities observed, and reviewed periodically as circumstances change.
Questions about marital agreements
How far before the wedding should this be done?
Months rather than weeks. Timing is one of the most common grounds for challenge, and an agreement signed days before the ceremony invites the argument that one party had no real choice. Starting early also makes the conversation easier.
Can we use the same lawyer to keep costs down?
No, and doing so undermines the agreement you are paying for. Independent representation for each party is one of the strongest protections against a later challenge. It is a cost that exists to make the document survive.
Can it be changed later?
Yes, by a further written agreement signed by both. Agreements are worth revisiting after major changes such as a business sale, a large inheritance, or a spouse leaving work, since an agreement that no longer reflects reality is more open to challenge.
Will a court definitely enforce it?
Nobody can promise that. A properly made agreement with full disclosure, independent counsel, adequate time and fair terms is very likely to be upheld. One rushed, one sided, or based on incomplete disclosure is genuinely at risk, which is why how it is made matters as much as what it says.
How it was made matters as much as what it says.
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