Tips for drafting an enforceable postnuptial contract

On behalf of Bebout, Potere, Cox & Bennion, P.C. posted in divorce on Monday, April 24, 2017.

Michigan law allows a couple to draw up a contract after they are married. This type of agreement, called a postnuptial contract, does not indicate that a couple is on the verge of divorcing. In fact, executing this type of contract may be a strategy for preserving a marriage; especially if a couple’s divergent financial habits are a source of frequent contention.

Although a postnuptial contract may be similar in form to a prenuptial agreement, its timing during the marriage may require extra care. Specifically, a marriage creates legal rights to property division of the marital estate. In a divorce, those property rights require an equitable division of the marital estate. Consequently, any agreement that alters a spouse’s default property rights requires an attorney’s eye for proper drafting and execution.

For example, a couple may have already acquired joint property and/or debt together. If a postnuptial contract were to shift all of the assets or liabilities of the marital estate to only one spouse, a court might investigate whether the contract was executed under undue influence or has signs of fraud. This asset shifting may also be viewed as an attempt to defraud a creditor if made shortly before the spendthrift spouse filed for bankruptcy.

Our Michigan law firm understands the procedures needed to prepare a postnuptial agreement that will have the most chances of being deemed valid and enforceable by a court of law. Our website describes our comprehensive family law practice in greater detail.

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