Prenuptial agreements, also known as antenuptial agreements, are not romantic but they can be pragmatic. This is particularly the case when one or both spouses are bringing significant assets into the marriage, or if one or both spouses own businesses. Other situations that may merit a prenuptial agreement include a second or subsequent marriage or a situation where one spouse is likely to inherit substantial assets. A carefully -drafted prenuptial agreement will clearly state which property is separate property and which property is marital property. Sometimes couples will enter into postnuptial agreements. These agreements function largely the same way as prenuptial agreements, but are signed after a couple gets married.
Whatever reasons one may have to enter a prenuptial agreement, the document must be legally enforceable. In the event of divorce, it is very possible that one party will attempt to challenge the legality of the prenuptial agreement. This document must be able to withstand a judge's scrutiny to have any value.
The elements of a legal prenuptial agreement in Michigan
Michigan courts have held that valid prenuptial agreements meet the following criteria:
- The agreement must not have been obtained through fraud, misrepresentation, duress, or failure to disclose facts. To this end, each party must fully disclose his or her assets prior to entering into the agreement. To minimize the possibility one party will claim they entered into the agreement under duress, it is better to enter into the prenuptial agreement well before the day of the wedding. Furthermore, each party should be represented by their own lawyer.
- The agreement must not be "unconscionable" at the time the parties signed the agreement. This means that the agreement should not be completely one-sided or unfair.
- Changes in the parties' circumstances have not changed since the agreement to make the agreement unconscionable. If the status quo has dramatically changed since spouses signed the prenuptial agreement and the agreement is now unconscionable as a result, courts may decline to enforce the prenuptial agreement.
- The agreement must be in writing. Oral prenuptial agreements are not enforceable.
In addition, prenuptial agreements only cover property division and spousal support. They cannot cover child support, child custody or visitation. Given what is potentially at stake, any person considering a pre- or postnuptial agreement should strongly consider working with a skilled lawyer.