Post-Nuptial Agreements

Postnuptial agreements are tools used by married couples to define their relationships and protect their assets to help save your marriage.

Negotiating and signing a postnuptial agreement (sometimes called a postnup) can be a way for you and your spouse to structure your relationship and resolve conflict in your marriage. But writing an enforceable post-nuptial agreement can be hard to do. You will want to work with a postnup lawyer who understands the complexities of Michigan law around postnuptial agreements, and can write you a domestic contract you can rely on for your family’s future.

What is a Post-Nuptial Agreement?

A postnuptial agreement is a domestic contract signed by spouses after they are already married. Often, postnuptial agreements:

  • Direct how each spouse will contribute to family and household expenses
  • Exclude specific property or business interests from the “marital estate”
  • Make arrangements for spouses, and children (including children from earlier relationships) in the event of death or divorce

Postnuptial Agreements vs Prenuptial Agreements

At their most basic level, the only difference between a postnuptial agreement and a prenuptial agreement is when they are signed in relation to your wedding. As the names suggest, a prenuptial agreement happens before the nuptials are completed. Any domestic agreement signed after the wedding is over is a postnuptial agreement.

One significant difference between prenups and postnups is what is called “consideration.” In contract law, consideration is what you get in exchange for what you give up under the agreement. For example, when you buy gas for your car you get gas in consideration for money. In a prenuptial agreement, the consideration is the marriage itself. You get whatever is promised to you in the prenuptial agreement in exchange for the wedding going forward. But in a postnuptial agreement, each spouse must receive something they wouldn’t otherwise be entitled to in exchange for what they give up. In other words, a postnuptial agreement needs to be enforceable as a contract, regardless of the fact that you and your spouse are married.

Michigan courts are more selective about enforcing postnuptial agreements than prenuptial agreements. Both kinds of domestic contracts must be equitable to be enforceable. However, in addition, a valid post-nuptial agreement must convince your judge that you didn’t sign it just to protect property from an inevitable divorce.

Validity of Post-Nuptial Agreements in Michigan

In recent years, Michigan courts have begun to enforce these kinds of domestic agreements as long as they do not violate public policy around the sanctity of marriage. The essential question for any post-nuptial agreement is whether it encourages either party to file for divorce. If either spouse would be better off divorced than married under the terms of the contract, or if divorce is “clearly imminent” when the postnup is signed, then it is not likely to be an enforceable agreement.

Postnuptial Agreements vs Settlement Agreements

The probability of a divorce is what distinguishes a postnuptial agreement from a settlement agreement. Many postnuptial agreements are entered into when spouses’ relationships are on the rocks. However, the purpose of a valid postnup is to lay ground rules so the parties can stay married, and hopefully mend their relationship. Once divorce becomes inevitable, any agreement about the division of property isn’t a postnuptial agreement, it’s a settlement agreement. It is possible to enter a settlement agreement before you file your complaint for divorce, but Michigan judges will use a different set of rules in deciding whether a settlement agreement can be included in your eventual judgment of divorce.

Why You Might Need a Post-Nuptial Agreement

With all the limitations on enforcement, you may question why you might need a post-nuptial agreement at all. It is true that postnups are not nearly as common as prenups. However, a post-nuptial agreement may be appropriate if:

  • You learn you are a beneficiary of a trust with limitations on spousal access to benefits
  • You inherit an interest in the family business with a buy-back clause in the partnership agreement
  • One spouse has an addiction or spending problem that is threatening the family finances
  • You owned a business before your marriage and you want to hire your spouse to work there without giving her an ownership interest in the company

Contact a Post-Nuptial Agreement Attorney

If you are worried about the family finances, or the survival of your marriage, you may want to hire a post-nuptial agreement lawyer to help you review your situation and write up a contract that protects your family’s future. Schedule a consultation with one of our experienced Michigan family law attorneys to discuss your financial situation and how any domestic agreement could affect them.