Prenuptial Agreements

Prenuptial agreements are tools to protect significant assets owned before marriage and if necessary protect the interests of children from previous relationships.

Signing a prenuptial agreement before your wedding day can help you and your partner take control of what happens in your marriage in the event of divorce and lay out intentions for what happens after one spouse passes away. Prenups aren’t just for the wealthy. They can also be useful for family business owners, blended families, and anyone who wants to be proactive about the chances of a future divorce.

What is a Prenuptial Agreement?

Prenuptial agreements (informally called prenups) are domestic contracts signed before the wedding date, that establish each person’s expectations about what will happen during and after the marriage. Prenups often describe:

  • “Separate property” each party is bringing with them into the marriage
  • “Separate property” each party acquires during the marriage
  • Expectations about how bills and household duties will be handled during the marriage
  • Adjustments to the default probate and estate administration rules for spouses
  • Guidelines for paying spousal support and dividing property in the case of divorce

A prenuptial agreement can waive your legal rights as a spouse. Both parties should fully understand what those rights are, and how a prenuptial agreement will change them before signing the contract. A prenuptial agreement can be difficult to modify or avoid once you have signed it, so it is important that both parties speak to their own independent prenuptial agreement lawyer before signing, to make sure the agreement is fair.

Who Needs a Prenup?

There are a variety of situations where one or both spouses may benefit from a well-negotiated prenuptial agreement. It may be wise to discuss your options with a prenuptial agreement attorney if you:

  • Have children from an earlier relationship that you want to ensure receive a fair inheritance
  • Own substantial property, especially a home you plan to live in together, prior to the marriage
  • Are an equity partner in a closely held company or family business
  • Need to protect your assets from your spouse’s premarital debt (including medical debt and student loans)
  • Are a veteran entitled to spousal benefits
  • Expect to receive an inheritance after the marriage
  • Want to set aside heirloom items or specific pieces of property for your family
  • Anticipate one party acting as a stay-at-home parent and want to set expectations about contributions and roles

Why Michigan Prenuptial Agreements are Different

If you live in Michigan or plan to move here after getting married, be sure to speak with an experienced Michigan prenuptial agreement attorney. A series of decisions from the Michigan appellate courts mean that a prenuptial agreement signed or enforced here may work differently than in other states. Under Michigan law, spouses cannot legally waive the family court’s ability to enter a fair and equitable property division in a divorce. That means that even if your prenuptial agreement says that one spouse will keep 90% of the assets, your family court judge may “invade” those assets to reach an equitable result.

This does not mean your domestic contract is useless or unenforceable. However, it does mean that every Michigan prenup should:

  • Be fair and equitable to both spouses
  • Be fully negotiated in advance of signing
  • Include contingencies for predictable future events (like one spouse losing a job)
  • Be drafted early enough to allow for review by both spouses and their own attorneys
  • Fully disclose each party’s property and debts prior to the marriage
  • Be signed by both spouses in advance of the wedding (and not at the rehearsal dinner or morning of the wedding)

Limits on Michigan Postnuptial Agreements

What if you miss the wedding day? Michigan law does allow for postnuptial agreements -- domestic agreements signed after the wedding date -- in certain limited circumstances:

  • The terms of the agreement were finalized before the wedding
  • The contract between spouses is independent of the marriage itself and includes fair consideration on both sides
  • The postnuptial agreement was signed in lieu of divorce or to settle a pending divorce action in favor of reconciliation

If you do need a postnuptial agreement, be certain to speak with a family law attorney with experience in drafting them. Michigan judges are often very skeptical of these contracts and will review all the details carefully before enforcing them.

What to Consider if Your Fiancee Wants a Prenup

If your fiancee has told you they want a prenuptial agreement, or has presented you with a proposed contract, don’t worry. It’s not a bad omen for your relationship. Prenups can be an excellent opportunity for both partners to put everything onto the table and have a frank discussion about finances and household expectations. Discussing and negotiating a prenuptial agreement can actually strengthen the foundation of your marriage, by making sure you and your partner are on the same page before saying “I do.”

However, generally, the person proposing a domestic agreement is the person who is most likely to benefit from its terms. This is why it is important to carefully review any marital agreements with your own attorney before signing them. Generally, prenuptial agreements waive either spouse’s right to request spousal support, regardless of their earning capacity and ability to obtain income. If you anticipate acting as a stay-at-home parent or homemaker, make sure you understand what that will mean for your overall financial situation, should the marriage end. Consider adding in a sunset clause, which allows the prenup to end after a certain number of years, or negotiate for spousal support in the event you and your spouse agree you will not work during the marriage.

If your spouse hands you a pre-drafted prenuptial agreement or asks for one before the marriage, be certain to hire your own prenuptial agreement lawyer to review the contract with you and explain what you are getting, and what you are giving up in signing it. Schedule a consultation with one of our experienced Michigan prenuptial agreement attorneys to discuss your financial situation and how any domestic agreement could affect them.