So you’re getting married!
Summer is such a good time to have a wedding – gorgeous flowers are
blooming, there’s more sun than snow and your family law attorney is always in
a better mood when he can go golfing after your appointment! Wait…why are you seeing an attorney before
you’re married? Isn’t that the kind of
meeting you have after the years of wedded bliss have vanished? Nope, if you want to protect the assets
you’ve accumulated, a pre-nuptial (also called antenuptial) agreement should be
on your mind.
*Courtesy of Jackson County Legal News, Vol. 47, No. 70, 6/7/12
Pre-nups, as they are commonly called, are enforceable in
Michigan provided certain conditions are met – the agreement must be reduced to
writing with both parties signing their lives away, “the agreement must be fair, equitable, and
reasonable under the circumstances, and must be entered into voluntarily, with
full disclosure, and with the rights of each party and the extent of the waiver
of such rights understood. In addition,
the agreement should be free from fraud, lack of consent, mental incapacity, or
undue influence.” Rinvelt v Rinvelt, 190
Mich App 372, 378-79 (1991).
Circumstances surrounding the agreement must not change so drastically
that when one of the parties later on tries to enforce it, this enforcement
would be almost as outrageous as Jesse James cheating on Sandra Bullock.
Per Reed v Reed, 265 Mich App 131 (2005), if you’re
trying to void a pre-nup later on, your crystal ball will not help you, as the
change in circumstances must be unforeseeable.
(Then again, if you’d had a crystal ball to use in the first place, you
would’ve seen the problems that lied ahead with his constant nagging about your
occupation of the entire master and spare bedroom closets, and planned
accordingly to purchase a larger home).
If you think all of this sounds like a contract, then you’re
right – the courts use contract law to interpret and wage legal battles over
these agreements. Some pre-nups use standard,
boiler-plate language that doesn’t say too much, and others are insanely
specific, with infidelity clauses, voiding of provisions once the parties have
been married so many years, etc.
Post-nuptial agreements are also executed after the parties
are married for the same basic reasons, but I would venture to say those are
far less common. I mean, how many people
are willing to sign things away after they’ve already bought the cow and the
milk? I’ve seen some people offer to
reconcile with their estranged spouse, but only if the spouse signs a post-nup
– I know this doesn’t seem legit, but it may be enforceable.
Post-nups come in two forms based on the parties’ intentions
– the first being if you plan to stay hitched, and the second being if you are
indeed separating and/or divorcing. If
you’re checking out of the marriage, then these agreements are reviewed based
on contract law and fairness is not something the court has to consider.
However, if you are going to stay married, per Wright v Wright, 279 Mich
App 291, 297 (2008), “under Michigan law, a couple that is maintaining a
marital relationship may not enter into an enforceable contract that
anticipates and encourages a future separation or divorce.”
Pre and
Post-nups are standard with the elite and wealthy in society who actually have
significant assets to consider, especially when the situation bears a
resemblance to that of Britney Spears
and Kim Kardashian. However, if you’re
like the rest of us, you probably have more debt than anything else, so you can
put that legal retainer to better use – your future bride’s wedding shoe fund.
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