The marriage date has passed, you are now a married couple, but trouble is putting stress on your marriage. Concerns over finances, care of the household, or what will happen when you die are putting your marriage at risk. You find yourself wondering, can you get a prenup after marriage? Find out what a postnuptial agreement is, and whether it may be appropriate for your case..
“Antenuptial agreements” are contracts between spouses or intended spouses made in contemplation of the marriage. That means they are intended to make the marriage work. Generally speaking, antenuptial agreements control:
Antenuptial agreements can be “prenuptial” if entered into before the marriage license is signed, or “postnuptial” if they happen after the couple is legally married. It would seem that the marriage date wouldn’t make much difference in the enforcement of a contract. But Michigan law treats prenuptial agreements and post-nuptial agreements very differently.
Prenuptial agreements, signed before the couples are married are generally upheld in court. Religious marriage contracts that are signed during the marriage ceremony may also be considered a prenuptial agreement and enforceable under principles of contract law. More often, these contracts are negotiated and drafted by attorneys in the days and weeks leading up to the wedding. For a contract to be enforceable there must be some consideration given and in Michigan the marriage itself is considered a thing of value given “in consideration” of the agreement.
Parties can sometimes ask that a prenup can be set aside based on arguments that both parties didn’t have their own lawyer and didn’t know what they were giving up, the document was signed under duress (such as the threat that the wedding would be cancelled), or other contract defenses. The party challenging a prenuptial agreement bears the burden of proof and persuasion. In a divorce, courts can also sometimes “invade” the separate property awarded to the other spouse if it is necessary to enter an equitable property division. In the leading case on the matter, Allard v Allard, 318 Mich App 583 (2017), the court ruled that “parties cannot, by antenuptial agreement, deprive a trial court of its equitable discretion.” This means that in drafting prenuptial agreements, parties should be particularly mindful that their agreements adhere to principles of equity to help strengthen the validity of the contract and lessen the risk of courts intervening.
Postnups get much more scrutiny from Michigan judges in probate and divorce courts. For a long time, it was assumed that a postnuptial agreement was automatically unenforceable because it encouraged divorce. However, there are some situations where a postnup will be enforced:
Historically, courts have generally struck down postnuptial agreements entered while the parties are still together if they set out the rights each spouse will have if a divorce is entered if it appears it was made in contemplation of divorce.
However, a recent Michigan Court of Appeals decision has taken another look at that assumption where a couple waited to sign their prenup after marriage. In Skaates v Kayser, three judges upheld an antenuptial agreement signed one month after the couples’ marriage. The couple were business owners with significant property and business interests before they got married. They spent 16 months before their wedding negotiating the terms of what was supposed to be a prenuptial agreement. However, a last minute email sent the day of the wedding showed there was still work to be done. The couple got married anyway. Then, after talking to an independent attorney, the now-husband agreed to sign the agreement about a month later.
Four years later, the wife filed for divorce. Her husband said the agreement was invalid because it was entered after the marriage and included terms controlling property division in divorce. In other words it was a postnuptial agreement “contemplating” a future divorce, and leaving his wife in a better position for having filed the divorce complaint.
The court said that postnuptial agreements were acceptable if they were “intended to promote harmonious marital relations and keep the marriage together.” Looking at the language of the parties’ post-wedding prenup, the court found that it was “not made in contemplation of, or in furtherance of, a divorce.” Instead it was designed to define and clarify the parties’ rights and obligations during the marriage and at the end of the relationship -- through divorce or death. Specifically, because the postnuptial agreement included a mandated “cooling off” period and marital counseling before either party could file for divorce, the court said the agreement was clearly intended to preserve the marriage, if possible, and was therefore enforceable.
Postnuptial agreements can be a useful tool to keep your family together through difficult situations when the only alternative seems to be a divorce. However, they must be carefully written and negotiated in specific circumstances to be enforceable in Michigan courts. At NSSSB, we have decades of experience helping spouses and spouses-to-be resolve difficult issues, including by negotiating prenuptial and postnuptial agreements. We understand when and how these agreements can be enforced, and what arguments to make when they need to be set aside. Click here to schedule a consultation with an attorney. We will listen to the details of your situation, answer your questions, and help you decide whether a postnuptial agreement is an option to keep your marriage intact.