Television and movies occasionally have characters bandying around some form of the expression: "you gotta get a pre-nup."
The hypothetical character is referring to a prenuptial or 'ante-nuptial' agreement, which is a property agreement entered into by two people who intend to be married to one-another. The most important aspect of a ante-nuptial agreement entered into in Michigan is that these agreements can alter the property rights that the signers may otherwise have, should their marriage later end in divorce.
Every ante-nuptial agreement in Michigan must:
A) Be in writing;
B) Signed by the parties to be married;
C) Be entered into voluntarily, and without duress or fraud;
D) The parties must have had full disclosure of assets and liabilities of each party;
E) Be 'fair' and not 'unconscionable' when the agreement was signed;
F) Be not 'unconscionable' to enforce when the agreement is enforced.
For the Court to find unconscionability in a ante-nuptial agreement, it requires a finding that 1) the “weaker party had no realistic alternative to acceptance of the term,” and that agreement was substantively unreasonable. See: Allard v. Allard, 497 Mich 1040, 864 NW2d 143 (2015).
In my next blog post, I'll look a little more into how duress or fraud can disrupt the enforcement of a antenuptial agreement.