Pre-nuptial and post-nuptial agreements, like any other contracts, are valid only if they are fair, equitable, and supported by sufficient legal consideration. Rockwell v. Estate of Rockwell,24 Mich.App 593, 596 (1970). “Consideration” means there must be a bargained-for mutual exchange of benefits — a quid pro quo. Pre-nuptial agreements often have a bargained-for exchange because the consideration may be the marriage itself (although that is not always by itself sufficient). Since a post-nuptial agreement is – by definition – made after the marriage already has taken place, the marriage itself cannot be consideration for the agreement. For that reason, Michigan courts have enforced post-nuptial agreements onlywhen litigation has been imminent, because “[p]ostnuptial agreements made during an existing separation are thought to further judicial policy favoring settlement of controversies over litigation.” Rockwell, 24 Mich.App at 596 (emphasis added). “Public policy favors upholding a property agreement negotiated by the parties when divorce or separate maintenance is clearly imminent.” Lentz v. Lentz, 271 Mich. App. 465, 477-78 (2006) (emphasis added). In those situations, the settlement of a pending controversy – i.e., an imminent divorce filing – often provides the required consideration for a valid post-nuptial agreement.
Unlike in cases where a post-nuptial agreement is signed as part of a separation or divorce, where a post-nuptial contract has been signed by a couple that “…was not separated at the time and had never separated during the marriage,” that post-nuptial agreement is notenforceable. Wright v. Wright, 279 Mich.App. 291, 297 (2008) (emphasis added). Since 2008, in both published and unpublished opinions, Michigan courts have continued to uphold this exact approach. For example, where a post-nuptial agreement “was not entered into to resolve a specific dispute,” it is not enforceable. Cheff v. Cheff, 2012 WL 1415150 (emphasis added).
To make sure that your pre-nuptial or post-nuptial agreement is enforceable, it must be very carefully planned and drafted. And to attempt to set aside an existing prenuptial or post-nuptial agreement, the arguments and analysis of the particular facts and law from the unique circumstances of your situation must be very carefully presented.