What Is A Postnuptial Agreement?
A postnuptial agreement is very much like a prenuptial agreement, with the exception of the fact that it is created by a couple who are already married. It is a contract that a couple signs together, which explains exactly how their assets and debts will be divided in the event of a divorce. When they are properly drafted, postnuptial agreements can be enforceable under Michigan law.
This, however, is a rather recent phenomenon and is a classic example of how the law is constantly changing. Most family law attorneys have advised clients to not bother having a postnuptial agreement because the courts won’t enforce them. For years, Michigan courts have ruled that postnuptial agreements encourage divorce and therefore they are void as being against public policy.
However, in 2014, the Michigan Court of Appeals did uphold and enforce a postnuptial agreement. In Hodge v Parks, our court ruled that under the particular circumstances in that case, the agreement encouraged the couple to stay together rather than encouraging them to divorce. This ruling has led some family law lawyers to believe that under the right circumstances, postnuptial agreement can be enforced.
Should My Spouse And I Get A Postnuptial Agreement?
A postnuptial agreement, also sometimes called a postnup, is the only option available to a married couple if they didn’t get a prenuptial agreement. Although postnuptial agreements are sometimes not viewed by the court as having the same validity as a prenuptial agreement, that is a changing perspective.
Properly created, a postnuptial agreement can help to protects your assets and protect you from your spouse’s debt. Additionally, it can provide a positive way for you and your spouse to communicate your hopes and plans for your assets, wealth and inheritance. It also provides couples an opportunity to assess their financial situation, and make decisions that will affect their financial future in lasting ways.
It is important to remember that Michigan law requires that there is a full disclosure by both parties of all assets and debts before the agreement is signed.
Things To Remember Before Getting A Postnuptial Agreement
It is important to remember that, despite your best intentions, the court may choose not to honor your postnuptial agreement. So while we do encourage couples to make the effort in the event that the agreement they prepare might save them a good deal of conflict in the future, there is no guarantee that it will be considered legally binding by the court.
Also, if you and your spouse are considering a divorce, then you should not be preparing a postnuptial agreement. Couples considering a divorce would need to seek assistance with planning for divorce proceedings. A postnuptial agreement, while it is executed after a couple is married, is not for the couple who intend to get divorced.
If you and your spouse decide that you would like to pursue getting a postnuptial agreement, we want you to know that the following is very important to remember:
- You must make a full and accurate disclosure to your spouse of all your debts and assets before the contract is signed.
- You should allow enough time for both parties to fully consider, understand and contemplate the contract before the signing.
- Both parties should have their own attorney advising them. You shouldn’t even ask one attorney to represent both parties.
- Hire an experienced family law attorney to draft the agreement and advise you about the latest developments in the law that pertain to your agreement.
The Kronzek Firm Postnuptial Agreement Attorneys
The family law attorneys at The Kronzek Firm have been working with married couples for many years, assisting them in properly drawing up these agreements which are becoming increasingly popular and helpful to couples.
Because the laws in this area changes often, it is important for any attorney drafting the agreement to be familiar with all of the most recent changes in the law. Our family law attorneys are experienced, hard working and diligent, and are ready to sit down with you to help you prepare for the future.