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.

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