Prenups/Antenuptial Agreements - DV Charges

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If you're charged with domestic violence in Michigan, and your spouse has filed for divorce against you, you're likely wondering what impact will your prenuptial agreement have on the divorce.  

In Michigan, the common term of "prenuptial agreement" is actually called an antenuptial agreement, which allow parties to determine their financial future in case their marriage is terminated at a later date by a court.  The agreement provides each party with certainty if the marriage should be dissolved.   

The agreement is a written contract between two people who are about to marry, setting out the terms of possession of assets, treatment of future earnings, control of the property of each, and potential division if the marriage is later dissolved. These agreements are fairly common if either or both parties have substantial assets, children from a prior marriage, potential inheritances, high incomes, a family business to protect, a desire to save the high cost of future litigation or have one spouse has had previous marriage that ended in a perceived unfair manner. 

The State of Michigan has held that prenuptial/antenuptial agreements are valid as long as "that agreement , contact or promise  or a note or memorandum of the agreement, contact or promise is in writing and signed with an authorized signature by the party to be charged with the agreement, contract or promise".  In sum, this means that an oral agreement of the sort will not be valid.  

This agreement must be executed prior to the marriage, and there is a special duty of disclosure that is higher than the duty of disclosure in a typical contracted agreement.  Both parties have a duty to disclose their assets before the signing of the antenuptial agreement, and failure to do so may result in the agreement being void.  

Michigan courts have states the prenuptial agreement must be entered into willingly and must not be unconscionable. Also, if the conditions and circumstances surrounding the agreement at the time of being entered into have changed, the change in circumstances must not result in making the agreement unfair and unreasonable.  If the agreement is now unfair and unreasonable, it may be possible to void the original agreement, and proceed without the agreement interfering with the divorce process.  

Antenuptial agreements can have what are called escalator clauses, which entitles a party to more money, property etc the longer the marriage.   It is also possible to put in the agreement that if the marriage reaches a certain number of years, the agreement will no longer be enforceable.  

Property is usually the number one asset to be protected in an antenuptial agreement.  The agreement must clearly define what separate property is to be protected by the agreement . This could be the property held prior to the marriage, or to also protect the appreciation and earnings from the property during the marriage.  Client's also wish to protect gifts and future inheritances.

Spousal support can also be part of an antenuptial agreement, which could state that one party is not entitled to spousal support or can be specific about what amount would be paid.  It is also important to make sure that certain language is in the agreement stating that spousal support cannot be modified.   It's important to note that antenuptial agreements cannot contain provisions limiting or determining child support payments.  

Michigan courts have held that the agreement must be "fair". It is also necessary that the facts and circumstances are unchanged since the agreement was executed to the time when the agreement is enforced.  In order for the agreement to be enforced at a later date, any change in circumstances must have been uncontemplated  and not reasonably foreseeable by the parties prior to or at the time of the making of the agreement.  

There is a full duty to disclose, and give a full accounting of all assets.  Here are a few examples - this is not meant to be  complete list.

- a list of assets and their value
- any liabilities - amount owed
- any previous child support obligations and entitlements
- any spousal support or other obligations to former spouse
- amount and source of income
- educational background of each party
- employment status of each party
- age and health status of each party

Michigan courts have held that the agreement must be "fair". It is also necessary that the facts and circumstances are unchanged since the agreement was executed to the time when the agreement is enforced.  In order for the agreement to be enforced at a later date, any change in circumstances must have been uncontemplated  and not reasonably foreseeable by the parties prior to or at the time of the making of the agreement.  

There is a full duty to disclose, and give a full accounting of all assets.  Here are a few examples - this is not meant to be  complete list.

- a list of assets and their value
- any liabilities - amount owed
- any previous child support obligations and entitlements
- any spousal support or other obligations to former spouse
- amount and source of income
- educational background of each party
- employment status of each party
- age and health status of each party

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