What are Post Nuptial (Postnuptial) Agreements and are they valid

A post nuptial agreement is basically a prenuptial agreement that a husband and wife prepare and sign after they are married. In my practice, located in Rochester (Auburn Hills), Oakland County, Michigan, I refer to these documents as “midnuptial agreements” because the couple is really signing these agreements during the middle of their marriage when they are not (at least openly) considering imminent divorce or separation. If the couple is contemplating divorce or separation in the immediate future, then that is referred to as a “separation agreement” or “property settlement agreement” and it is advisable to first file a complaint for legal separation (separate maintenance) or divorce before signing such a contract otherwise it may not be valid as discussed below.

It is my opinion that a properly drafted postnuptial agreement is valid in Michigan and will be upheld by the courts. In a 2008 Michigan Court of Appeals case, Wright v Wright, 279 Mich App 291 (2008), the author of the opinion, Judge O’Connell, stated that such agreements were against public policy. However, at the 9th Annual Family Law Institute Seminar on November 12, 2010, Judge O’Connell stated verbally and in his written materials that this was an “oops” and that he was wrong in stating this in such a manner.

In my opinion what this means is that the agreement in the Wright case was not valid because it encouraged the husband to divorce his wife, was written in contemplation of divorce and that the particular agreement in that case was against public policy, not all post nuptial agreements. I have in fact written “midnuptial” agreements which the parties agreed to follow when they divorced which avoided the requirement of litigation.

The basic requirements for post nuptial agreements are the same as prenuptial agreements however there are at least two additional issues one must address. Those two additional issues are:

• consideration or what is given or bargained for to support the contract and make it legally binding and
• the agreement must not be made in contemplation of divorce, (whereas a prenup must be made in contemplation of marriage).

For any contract to be valid and legally binding, there must be consideration, in the example of an employment contract, one party agrees to work for the other and the other party agrees to pay the worker for that work, this is called consideration. In a prenuptial the consideration is the exchanged promise to marry, each person is promising to marry the other and this exchange of promises is the consideration to support the contract. In the post nuptial agreement, the person that prepares the contract must state in the document the consideration that will support it and make it legally binding.

The promises exchanged cannot be for one party not to file divorce, leave the marital home or stay in the marriage. The family law attorney drafting the agreement should write the agreement very carefully and indicate that the intent of the parties is to enter into an amicable settlement of property issues and not to contemplate or facilitate divorce or separation. If a jduge believes that the intent of the contract was to facilitate imminent divorce or separation that is against public policy in Michigan and the written agreement will not be upheld by the court. This does not mean that the agreement cannot discuss divorce or separation, again however, the divorce lawyer writing or drafting the agreement must be very careful to avoid the appearance that the agreement would encourage one of the people to file for divorce or facilitate the couple’s separation.

A postnuptial agreement will be reviewed by the court under a fair and equitable standard which is a legal term of art and involves procedure as discussed below and it should not be taken literally. While a separation agreement or property settlement agreement are reviewed under general contract principles which means in most cases that even if it is not fair at all to one party, it is still binding so long as procedural requirements are met.

• the other requirements (which are the same for both prenuptials and post nuptials) for a valid and binding “midnuptial” (or prenup) are:
• the agreement cannot be obtained through fraud, duress or mistake,
• the agreement cannot be unconscionable/unfair when signed,
• the facts and circumstances cannot have changed so much in an unforeseeable way since the date it was signed that it would be unfair and unreasonable to enforce it,
• both parties must enter into the agreement voluntarily and
• both parties must disclose all assets and facts before signing the agreement.

The above factors include terms which are legal terms of art and include procedure and legal definitions so they do not necessarily mean what they would in the common usage of our language, particularly with regard to “fairness” and “foreseeable”. The above five factors are complicated and are a separate topic in among themselves.

If the family law attorney or divorce lawyer carefully drafts the postnuptial contract then it should be enforceable in Michigan and can be a valid substitute for a prenuptial contract if you did not get one before the marriage.

DISCLAIMER: This information is provided for general educational purposes only including answers posted to questions at Ask Cameron. It is not intended to be relied on as legal advice. This information may not have been updated to reflect subsequent changes in the law, if any. Your particular facts and circumstances, and any changes in the law, must be considered to determine appropriate legal advice. Always consult with a competent attorney, licensed in your state, to discuss your particular situation. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Byers & Goulding, PLC and/or Cameron C. Goulding. Please do not send information to us that you consider confidential without first obtaining:
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This information is not guaranteed to be correct, complete or up-to-date. It should not be relied upon or construed as legal advice. You should not act or elect not to act based upon this information without seeking professional counsel. Byers & Goulding, PLC has its office located in Auburn Hills, Michigan. We do not wish to represent anyone in any state in which this information may not comply with all applicable laws and ethical rules, or to represent anyone with respect to legal matters related to the laws of any state or country in which our lawyers are not admitted to practice law.

Cheating Husbands and Wives in Oakland County Michigan Divorces

If my husband or wife has “cheated” on me, or has otherwise been unfaithful, will it make a difference in my divorce is a question that many people have when they find out about an affair. The answer, in Oakland County Michigan Family Law Courts or Divorce Courts, is yes and no.


I recently have answered many questions that start with “my wife (or husband) met someone on FaceBook and …” In Michigan, we have no fault divorce, so one does not need to state a reason to get a divorce. The real question seems to be whether one will have an advantage for property settlement, alimony (spousal support) or child custody.

Regarding child custody, it does not seem to make a difference whether one party has been unfaithful during the marriage, unless the new partner has some criminal history or is otherwise dangerous to the children. This is true even though moral fitness of the parents is a factor that the courts must take into account when determining custody.

Regarding property settlement, the court may take into account whether one party has been adulterous. However, most judges do not really want to hear these type of details and the party accusing the other of having an affair, must be very careful not to overemphasis this in court. The judges often take a “chicken or the egg” type approach and assume that both parties have wronged one another at some point during the marriage and that there are many reasons the parties are getting divorce.

Regarding alimony (spousal support), the court may take into account whether one party has had an affair during the marriage. Again, as with property settlement, one must be careful not to get caught up in attempting to punish the other party for this during the divorce. It is one factor that taken together with other factors may make a significant difference, such as the length of the marriage, the parties’ relative incomes and the egregiousness or repetition of the activity. However, judges will generally not attempt to punish one party for this type of activity.

In addition, Judges are very skeptical (as should be most people) of anyone that tries to paint themselves as a complete victim and one’s attorney must be very careful when presenting evidence to avoid this perception. The answer to whether a cheating husband or wife will allow one to get a better settlement then is technically yes, but in reality there are many other factors that courts in Oakland County Michigan consider far more important in a divorce case.

North Oakland Divorce Blog: Abandonment & Divorce – Legally Speaking

North Oakland Divorce Blog: Abandonment & Divorce – Legally Speaking

Abandonment & Divorce – Legally Speaking

I have been a divorce lawyer in Oakland County Michigan for many years and over the years I have often been asked at the initial meeting “Will I face abandonment issues in my divorce because I moved out of the home or if I move out of the home?”


Fortunately, unlike many issues in divorce, there is a simple answer to this Question. No, you will not. This is true in Michigan and it should be true in any “No-fault” divorce state if you do not live in Michigan.

The explanation is a little more complicated and involves a little history in Michigan Family or Divorce Law. Until the 1970’s, Michigan law required a person that had to get divorced to state a specific reason for the divorce, such as abuse or abandonment on the record. If the person did not state a sufficient reason, the judge could deny the person a divorce. This caused unnecessary embarrassment, humiliation and other more serious issues to innocent people that needed to get divorced.

Abandonment or desertion, as it was technically called in Michigan, was repealed as a basis for divorce when Michigan instated the “No-Fault” rules for Divorce. The statute repealing Abandonment or Desertion as a grounds for divorce in Michigan is MCL §552.9d. (You may review this statute at http://legislature.mi.gov/doc.aspx?mcl-552-9d.)

Michigan no longer requires a person to state specific grounds for divorce. Typically a person recites the phrase “there has been a breakdown of the marital relationship to the extent that the bonds of matrimony have been destroyed” and this is sufficient. Desertion of a minor child is still a felony in Michigan however this really has no relation to the question as posed in relation to a divorce, where one party has moved or plans to move out of the house. The felony non-support statute in Michigan is MCL §750.164.  (You may review this statute at http://legislature.mi.gov/doc.aspx?mcl-750-161.)

I do offer the following advice as an experienced litigator, attorney, divorce lawyer and compassionate human being to those who ask me the Abandonment question.

You should continue to pay the bills and support your children as you did during the marriage after you or your spouse move out of the home. For example, if you each paid certain bills, you should continue to pay the bills for which you have been responsible. Let your spouse know that you are paying those bills and you anticipate that they will continue to pay the other bills they have paid. If each of you puts money into an account and the bills are paid out of that account, you should continue to do that absent another agreement however if you are not the party that has been in “control of the checkbook” then I highly suggest that you speak to your spouse about dividing up the bills and opening separate accounts, to allow yourself the ability to open your own bank account and have some control over your own finances. Please contact me to discuss this strategy and why it is very important to do this before you or your spouse file for divorce if you can.

If you cannot pay your bills, that is an issue that you should discuss with a financial advisor, credit advisor or bankruptcy attorney, depending on the extent of the issue. I would be happy to refer you to a trusted financial advisor, credit advisor or bankruptcy attorney if you contact me online at http://camerongoulding.com/contactus.aspx. Who knows getting your financial issues in order may help your marital issues and should certainly reduce the horrible stress and anxiety that you must be facing.

North Oakland Divorce Blog: Alimony Termination - The Three Rules of Cohabitation

North Oakland Divorce Blog: Alimony Termination - The Three Rules of Cohabitation

Alimony Termination - The Three Rules of Cohabitation

Are you receiving or paying alimony or spousal support? Are you or your ex-husband or ex-wife “living with” a boyfriend or girlfriend? Then termination of spousal support or alimony due to cohabitation may be an issue for you.


Many judgments of divorce that include payment of alimony or spousal support include language that the alimony or spousal support will terminate if the payee (the ex-spouse receiving support) cohabits with another person of the opposite sex.

If your judgment of divorce contains this term, cohabit or cohabitation, and it does not define what that term actually means, then, in the State of Michigan, a divorce court will look at the following three factors to determine whether or not you may be able to terminate your alimony obligation or lose your right to the spousal support awarded to you:

1. The divorce court will consider the living arrangements of the couple and the extent to which they share a common residence. The divorce court will focus on factors such as whether both keep personal items such as clothes and toiletries at the residence and how long they have been doing so.

2. The divorce court will consider the couple’s personal relationship and whether it appears relatively permanent. The divorce court will look at such factors as whether the couple engages in sexual relations, vacation or spend holidays together, are monogamous and whether or not marriage has been contemplated.

3. The divorce court will consider the couple’s financial arrangements. The divorce court will look at such factors as whether the couple share expenses or whether one party supports the other.

The divorce court should not focus on any one of these factors but review the totality of the circumstances of each particular case.

If the above factors apply to you or your ex-spouse, then you should be aware that you may file a motion or your ex-spouse may file a motion to terminate alimony or spousal support. If you would like more information, please contact me to schedule an appointment at (248) 340-0900, the first half-hour is complementary or I will answer one question posted to the Contact Us page at my website http://www.camerongoulding.com/

North Oakland Divorce Blog: Michael & Diandra Douglas: why greed, anger and revenge have no place in Oakland County Divorce Courts

North Oakland Divorce Blog: Michael & Diandra Douglas: why greed, anger and revenge have no place in Oakland County Divorce Courts