Post-Nuptial Agreements Must Comply with Standards of Fairness
Post-nuptial agreements are similar to prenuptial agreements, in that they set forth an agreement between spouses as to their respective property rights in their collective marital property. The difference is that a postnuptial agreement is contemplated and executed by the husband and wife after the wedding and during the marriage. These types of agreements are generally enforceable in Michigan if certain requirements are met. Namely, these requirements include:
(1) The agreement was not obtained by fraud, duress, mistake, misrepresentation, or by non-disclosure of material facts.
(2) The agreement was not unconscionable (grossly unfair) at the time it was executed.
(3) The facts and circumstances since the signing of the agreement have not changed so substantially or dramatically so as to render the enforcement of the agreement at the time of the divorce unfair, even if it was fair at the time of the signing of the agreement.
The timing of a post-nuptial agreement is extremely important in determining whether the agreement will be enforceable under Michigan law. The Michigan Court of Appeals has drawn a legal distinction between postnuptial agreements which were entered into while the parties were still married, and those agreements entered into after the parties have legally separated.
Postnuptial Agreements Entered Into After Separation but Before Divorce
Pursuant to Lentz v Lentz, 271 Mich App 465 (2006), and Wright v Wright, 279 Mich App 291 (2008), agreements entered into after the parties have separated, but prior to filing for divorce, face much stricter scrutiny from the Courts in terms of enforceability. However, even if the agreement was executed after the parties have separated, the Courts may find such an agreement enforceable if it complies with the standards of fairness.