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Looking at the basic requirements of prenuptial, postnuptial agreements in MI, P.2

Previously, we began looking at the topic of marital contracts, both prenuptial and postnuptial agreements. The basic difference between the two, of course, is that prenuptial agreements are entered into prior to marriage, while postnuptial agreements are entered into during the marriage itself. That makes enough sense, but one important point about postnuptial agreements is that, by law, they must not be made in contemplation of divorce or separation.

The reasoning behind this requirement is the public policy that marital agreements must not become a means of undermining marriage. Whether or not you agree that this is a danger, the rule is that divorce or preparation for divorce must not be a motive for entering into a postnuptial agreement. When a spouse can provide evidence demonstrating to a court’s satisfaction that divorce was a motive, these agreements can be set aside. 

In some cases, couples enter into a postnuptial agreement after a period of separation and contemplation of divorce in an effort to save their marriage. These agreements may include terms about fidelity, sobriety, or the use of marital assets, conditioning the marriage on compliance with these terms. These agreements can be valid and enforceable, provided they are aimed at keeping the couple together and the agreement is fundamentally fair to both parties. In other words, the agreement must not encourage divorce in any way, whether by leaving one party in a much better financial position than the other in the event of divorce, or in any other way.

Postnuptial agreement must, however, be supported by some sort of consideration. Consideration is the exchange of something of value, and it is necessary for a postnuptial agreement to be considered a valid contract. While the consideration in prenuptial agreements is the promise of marriage, postnuptial agreements require some other form of consideration. Typically this takes the form of an exchange or waiver of marital property rights, though each couple has to work this out for themselves.

Having the advice and guidance of an experienced attorney can help ensure a spouse’s rights and interests are protected and advocated in negotiating and enforcing prenuptial and postnuptial agreements. Without this advice and guidance, marital agreements can just end up being another thing to fight about in divorce. 

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Looking at the basic requirements of prenuptial, postnuptial agreements in MI, P.2 | Peter A D'Angelo, Attorney at Law, PLC