The Benefit of Prenuptial Agreements

What is a Prenuptial Agreement?
Couples may wish to enter an agreement including provisions as to how their separate or future acquired marital property would be divided, debts allocated, and whether spousal maintenance (alimony) is waived. This process before the marriage results in a Prenuptial Agreement. Prenuptial Agreements must be entered before a marriage in contemplation of that same marriage. A Prenuptial Agreement completed in anticipation of or one that encourages divorce would ultimately be unenforceable by a court.

Who needs a Prenuptial Agreement?
A common misconception of Prenuptial Agreements is that only those who are extremely wealthy or who have high-value assets need a Prenuptial Agreement. Prenuptial Agreements can be sensitive subjects among some couples. Some people believe a Prenuptial Agreement is only necessary for couples who may have mistrust. Some believe determining what would happen to the estate in case of a future divorce is already one step toward a divorce. In reality, a Prenuptial Agreement is a great practice in future planning. Many couples intending to be married can benefit from a Prenuptial Agreement. This is true regardless of the assets either spouse may hold, their values, or their respective incomes.

Divorce is an emotional process. Having a Prenuptial Agreement in place to determine what would happen if a breakdown in the marriage occurs can save couples a lot of time, money, and emotional turmoil. In that scenario, a Prenuptial Agreement can result in a more amicable process. Think of a Prenuptial Agreement as a sort of an insurance policy for your marriage. Homeowners do not purchase an insurance policy anticipating a house fire, flood, or other disaster. In the unfortunate event of such a catastrophe, the homeowner would save a lot of time, money, and heartache if they held an insurance policy for their benefit. That insurance policy would assist the homeowner through the rebuilding process and better equip them for a future after the disaster. The same is true for a couple who obtains a Prenuptial Agreement and enters a marriage that unfortunately ends in divorce.

Is there anything that is automatically unenforceable if included in a Prenuptial Agreement?
Prenuptial Agreements can certainly be tailored to you and your future spouse’s specific circumstances and needs. However, the terms and execution of a Prenuptial Agreement must still comply with Michigan law. The terms and execution of the agreement must align with public policy to remain enforceable should the marriage end in divorce after signing the Prenuptial Agreement. Michigan courts have held that some types of provisions in a Prenuptial Agreement are automatically unenforceable.

Any portions of a Prenuptial Agreement concerning child support or child custody are unenforceable.

How to obtain a Prenuptial Agreement?
Michigan law requires several things in executing a fully enforceable Prenuptial Agreement. A party entering a Prenuptial Agreement must have the capacity to understand the document they are signing and any implications arising from the same. Each party must enter into the agreement voluntarily and only after being fully advised of the other party’s assets, debts, and income. A full financial disclosure is crucial. The more transparent a couple is in the creation and execution of their Prenuptial Agreement, the more likely the Court will find the same agreement enforceable should one party challenge the validity in the future. Finally, a Prenuptial Agreement must be written and signed by the couple.

We highly suggest retaining an attorney to draft and advise you regarding your rights as they relate to your Prenuptial Agreement. Your future spouse should also retain their own attorney to completely understand their individual rights in reviewing and signing any Prenuptial Agreement. Additionally, you may be waiving some rights by signing a Prenuptial Agreement that you may otherwise have in case of a future divorce. It is important that each Prenuptial Agreement contains an understanding of the waiver of such rights. An experienced family law attorney can explain waivers of any rights and the benefits or disadvantages of such waivers. Prenuptial Agreements are intricate and may be proven unenforceable in the event of a later divorce if not done correctly. Contact McKinney Vos today to set up a free consultation to discuss your needs and determine whether a Prenuptial Agreement is right for you.