Michigan courts recognize the right of individuals to enter into premarital contracts that define the distribution of assets and spousal support in the event of divorce. A prenuptial agreement (“prenup”) is enforceable if it is transparent, voluntary, fair and legally sound. However, courts retain the discretion to intervene if an agreement falls short of the state’s standards of fairness and legality.
Taking the following steps will help make your prenuptial agreement as airtight as possible:
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Execution well in advance — Signing weeks or even months before the wedding demonstrates that both parties entered into the agreement voluntarily and without undue pressure. The closer to the wedding date a prenup is signed, the more vulnerable it is to being challenged on the grounds of duress or coercion. Give both parties enough time not only to read the agreement, but also to consult with attorneys and consider the consequences fully.
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Fairness at execution — The agreement must be fair considering the circumstances at the time it was signed, not just when it is enforced. A court may void a prenup that was unconscionable when executed, such as one that would leave one spouse without reasonable support.
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Clear language — Every key term should be clearly defined. For example, clarify what is meant by “separate property” versus “marital property.” Also, explicitly list what assets will remain individual and how any appreciation or income from those assets will be handled. Similarly, be precise about “spousal support,” whether it is to be waived, limited or calculated by a particular formula. Vague or poorly-drafted agreements open the door to judicial interpretation.
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Attention to foreseeable issues — A strong prenup anticipates and explicitly addresses foreseeable issues such as division of property acquired during marriage; disposition of business interests; treatment of retirement accounts and investments; allocation and assumption of debts; and limitations on spousal support/maintenance.
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Periodic review — Major life changes–such as having children, significant changes in income or acquisition of valuable assets–can render a previously fair agreement obsolete or even unfair. Periodically reviewing the prenup and executing an updated agreement, “rider,” or amendment as needed helps maintain its enforceability and relevance.
Another important safeguard is making sure that each party consults their own attorney before signing, so that both parties understand the agreement’s consequences. This reduces the chance of later claims of misunderstanding or coercion. Courts look far more favorably on agreements where both parties had legal representation or knowingly waived it in writing.
Dawson Family Law, PLLC in Troy, Michigan has deep experience in drafting, negotiating and revising prenuptial and postnuptial agreements. Please call 586-514-0084 or contact me online to schedule a free initial consultation.
