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Should You Consider a Postnuptial Agreement?

A postnuptial agreement is essentially the same as a prenup except that it is created after you are married. It is a legal contract setting out how your assets and debts will be allocated if you should end up getting divorced. However, postnuptial agreements until recently were not enforceable in Michigan, as judges tended to see them as contracts that encourage divorce and thus against public policy.

But postnuptial agreements are now finding favor with Michigan judges. In a recent case, the Michigan Court of Appeals upheld and enforced a postnuptial agreement, ruling that the agreement encouraged them to stay together rather than encouraging them to get divorced. In the wake of this ruling, couples may find it worth their time to consult a family lawyer about creating their own postnuptial agreement.

There are a variety of possible reasons why you and your spouse may want to discuss signing a postnuptial agreement:

  • You had discussed getting a prenuptial agreement prior to marriage but ultimately did not.
  • Your financial position has dramatically changed since you got married.
  • You have children from another marriage and you want to make sure they are provided for if you pass away.
  • One of you is thinking about giving up your career to become a stay-at-home parent.

You can use a postnup to address how various assets should be treated if you get divorced, including your home(s), retirement accounts and investments. A postnup can also set forth a spouse’s entitlement to alimony and in what amount. As for monetary payments to children, the court retains the power to override the agreement for the sake of a child’s best interests.

If you and your spouse decide to explore a postnuptial agreement, you should be aware of the following information:

  • Before signing the agreement, you will each need to provide a full and accurate account of all your assets and debts.
  • You cannot expect your spouse to sign the contract immediately. Enough time must be given to each party to fully consider, contemplate and understand all details of the agreement.
  • Each spouse should have his or her own attorney.
  • You should not try to write your own postnuptial agreement. The agreement should be drafted by lawyers who are experienced in Michigan family law.

Keep in mind that if it appears to the court that one spouse pushed for the postnup and the other was reluctant, the chances of enforceability are reduced.

At Dawson Family Law, PLLC, I have significant experience with these marital contracts and would be happy to meet with you and discuss the pros and cons in light of your unique circumstances. My office is conveniently located one-half mile south of M-59 (Hall Road) in Sterling Heights. Please call 833-671-4445 or contact me online to schedule a free consultation.

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