Postnuptial agreements are trickier than prenuptial agreements. This is because of the public policy in Michigan law that disfavors agreements in the contravention of marriage. Therefore, some family court judges will not recognize postnuptial contracts if they believe the agreement was designed to destroy the marriage.
On the other hand, if a postnuptial agreement is executed subsequent to the filing of a complaint for divorce, then the Michigan Court of Appeals has ruled such an agreement enforceable. When a postnuptial agreement is executed without pending divorce proceedings, it may be deemed invalid.
To be valid, the same general rules apply to postnuptial agreements that apply to prenuptial contracts. First, both sides must have the contract reviewed by separate lawyers. Second, the agreement must fully disclose the marital assets and debts to the other and acknowledge this full disclosure in the body of the prenuptial agreement. And lastly, the agreement must be signed at any point in time following the nuptials by each spouse, willingly and not under duress.
So why would a couple consider a postnuptial agreement? In many cases, due to differences or a serious breakdown in the marital relationship, the agreement is required by one spouse in order to stay in the marriage. For example, if a divorce proceeding is becoming highly contested over financial matters, but both parents maintain the desire to preserve their family unit for their children, a postnuptial contract can settle financial matters should, ultimately, the marriage does not survive ongoing tensions. Another way to view such a contract is that the parties may agree to settle all financial matters now in a signed agreement and move forward trying to save their marriage.
If you or your spouse are contemplating the execution of a postnuptial agreement, then contact our law firm for a free consultation to explore your options in this regard.