For a Michigan prenup to be considered valid, you should consider the following:

• The contract must be in writing
• The terms must be fair, equitable, and reasonable
• The terms must be lawful
• Must be signed voluntarily by both parties (without being under duress, fraud, or misrepresentation)
• The contract must be signed at a reasonable amount of time before the wedding
• Full disclosure of all financial assets and income *Do not skimp on this*
• It is strongly recommended that both parties be represented by their own attorneys
• It is strongly recommended that there be witnesses
• It is strongly recommended that the contract be notarized

To make sure that your prenup comports with Michigan law, make sure not to include…

• Child support or child custody
• Unfair, inequitable, or unreasonable terms
• Unconscionable terms
• Provisions that violate the law or public policy

Keep in mind, if the Michigan courts think your prenup creates an unfair result, they can overturn it and work out their own terms for your divorce.

If you would like to get a prenup in Michigan, you must comply with the following:

• The contract must be in writing
• The terms must be fair, equitable, and reasonable
• The terms must be lawful
• Must be signed voluntarily by both parties (without being under duress, fraud, or misrepresentation)
• The contract must be signed at a reasonable amount of time before the wedding
• Full disclosure of all financial assets and income *Do not skimp on this*
• It is strongly recommended that both parties be represented by their own attorneys
• It is strongly recommended that there be witnesses
• It is strongly recommended that the contract be notarized
• Do not include clauses about child custody or child support, that is for the court to decide

Michigan Compiled Laws (MCL) Section 557.28 is the statute governing prenups in Michigan. You can see the statute’s fine print here. Most of Michigan’s prenuptial standards are based on case law.

What do Michigan judges deem as a fair prenup under Michigan law? Well, for starters, Michigan courts have a lot of wiggle room to decide whether a prenup is fair or not. If the court thinks it’s unfair in any way, then the court can and will declare the prenup invalid. A landmark Michigan prenuptial case from 2005 speaks volumes about prenup fairness. The case goes as follows.

Husband and Wife were married in 1975. Husband was a newly graduated lawyer and Wife was an engineer. At the time of marriage, they had a combined net worth of $20,000. About two months before their wedding day, they executed a prenup. The prenup stated that both parties would keep their own separate property and Husband would get to keep the home they lived in throughout the marriage. Throughout the marriage, they kept their finances separate, with separate bank accounts and even purchasing property under their own separate names.

All good things come to an end, and for this Detroit couple, it was in the year 2000. Wife filed for divorce in 2000 after a 25-year marriage. At the time of divorce, Wife and Husband were each making an identical $1,000,000 per year. In the divorce proceedings, Wife asked the court to declare the prenup invalid because there was a change in circumstances making the prenup unfair. Wife’s argument stems from their combined net worth going from $20,000 to more than $2,000,000. Husband disagreed and asked the court to deem the prenup valid. Husband counter-argued that they kept separate bank accounts and purchased property separately all these years. He also argued that Wife never saved any money, and that’s why she’s asking for the prenup to be wiped.

The million-dollar question (literally): what did the court think? Drum roll… the court held this prenup to be fair! The court reasoned that just because their assets grew substantially does not mean that the circumstances changed so much that it deemed the prenup invalid. In other words, just because the Husband had a lot more money at the time of the divorce and the prenup now benefits him does not make the prenup unfair. (Reed v. Reed, 265 Mich.App. 131 (2005))

Along with unsuccessfully challenging the validity of the couple’s prenuptial agreement, former wife sought equitable distribution of the parties’ assets pursuant to the court’s statutory authority (i.e. distribution as if there were no prenup). However, the trial court declared that it was bound by the antenuptial agreement. The appellate court disagreed and reversed. In reaching its conclusion, the court attempted to reconcile the two “bedrock principles”: “first, that the fundamental right to contract must be protected by allowing parties to contract freely and by enforcing contractual agreements; second, that courts sitting in equity must be free to afford whatever relief is necessary to see done that which, in good conscience, ought to be done.” While the laws of divorce are statutory in nature, the division of property must be equitable. Former husband argued that parties can divest the courts of its statutory authority to effectuate an equitable settlement by way of an antenuptial agreement. See MCL 557.28 (“A contract relating to property made between persons in contemplation of marriage shall remain in full force after marriage takes place.”). However, parties cannot enter into contracts which are contrary to public policy. See Maids Int’l, Inc. v. Saunders, Inc., 224 Mich.App. 508, 511, 569 N.W.2d 857 (1997) (“contracts founded on acts prohibited by a statute, or contracts in violation of public policy, are void.”).

The court reasoned that the Legislature clearly demonstrated that it intends circuit courts, when ordering property division in a divorce matter, to have equitable discretion to “invade separate assets” if doing so is necessary to achieve equity (i.e. make things fair). See MCL 552.12 See footnote 1, below; MCL 552.23(1) See footnote 2, below; MCL 552.401 See footnote 3, below. This right is held by the circuit courts, not the parties themselves. Therefore, the right cannot be waived by the parties to an antenuptial agreement. “Put differently, the parties to a divorce cannot, through antenuptial agreement, compel a court of equity to order a property settlement that is inequitable. Although parties have a fundamental right to contract as they see fit, they have no right to do so in direct contravention of this state’s laws and public policy” Id. at 601. Therefore, the court declared that parties may not waive the court’s equitable discretion (i.e. power to divide things fairly) via antenuptial agreements. Read the entire case here.

There are three ways that a couple can legally end a marriage in Michigan: separate maintenance, annulment, and divorce. Only one party needs to begin the process of ending a marriage (but don’t get us wrong, it takes two to make it work!) If one party wants to divorce the other party, it is within their sole right to do so, and the other non-participating party does not have to agree in order to begin the process. If a non-participating spouse does not partake in the proceedings, a default judgment will be entered and force the divorce to proceed.

Each state has residency requirements that must be fulfilled before you can divorce in that state. In Michigan, these are the residency requirements:

• One spouse has resided in Michigan for 180 days immediately before filing the divorce.
• One spouse has resided in the county where the divorce is filed for at least 10 days immediately before the filing.

Michigan is a “no-fault” divorce state – meaning either party can file for a divorce without having to prove that the other party did something “wrong” to justify the divorce. Michigan is a pure no-fault state, so you will need to claim that the marriage is irretrievably broken. In other words, your divorce is beyond repair, and it must end in divorce.

>>For the entire fine print review Michigan Compiled Laws Section 552.6

A divorce in 2010 helped Michigan courts decide if, and to what extent, workers’ compensation benefits received during a marriage is separate or marital property. Remember, marital property is subject to distribution in the divorce. Separate property is what you keep.

The facts of the case are as follows. A Michigan couple divorced. Wife wanted Husband’s workers’ compensation to be considered marital property so it would be distributed in the divorce settlement. Husband wanted the workers’ compensation to be considered separate property so he could keep it.

What did the court think? The court said that workers’ compensation is marital property (a.k.a. it would get split up in the divorce) if it compensated for wages lost. If the workers’ compensation was for pain and suffering, it would be considered separate property and, therefore, not split up. (Cunningham v. Cunningham, 289 Mich.App. 195 (2010)).