Marie Matyjaszek: 'Honey, there's just this one little thing...' Pre and post nuptial agreements

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.

Pre-nups 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 tries to enforce it, this enforcement would be almost as outrageous as Jesse James cheating on Sandra Bullock. (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, 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.

For the same basic reasons, post-nuptial agreements are also executed after the parties are married. 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 is if you plan to stay hitched, and the second is 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. Perhaps your future bride's wedding shoe fund?

The author is an associate attorney at the Law Office of Robert Matyjaszek, PLLC, Jackson, Michigan. Her blog site is: http://legalbling.blogspot.com. She can be reached at (517) 787-0351 or by emailing her at matyjasz@hotmail.com.

Published: Thu, Jun 7, 2012

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