Prenuptial agreements (usually called “prenups”) have become very common in Michigan as family lawyers and their clients have realized the value of such agreements.
A more common question now is whether a prenup can be defeated if one party attempts to enforce the agreement by starting a lawsuit.
Defeating a prenup enforcement lawsuit is not easy, but under the right circumstances, not every prenup is going to be enforced by a judge.
The easiest arguments against a prenup
The most powerful arguments against a prenup agreement are those that rest on the statutory formalities.
Most states that have passed statutes legalizing prenups – and this includes Michigan – have also enacted a series of rules or formalities that must be followed to give a prenup legal effect.
The agreement must be in writing and signed by both parties before the wedding. Both parties must receive adequate time before signing to have the agreement reviewed by separate attorneys who are knowledgeable about divorce.
Denial of this opportunity is often characterized as coercion, which in itself is also used as an independent ground for invalidating a prenup.
Fraud or unfairness
If one party makes a false statement to the other party to encourage execution of the prenup, a judge may invalidate the agreement or at least the clause based upon the fraudulent statement.
A manifestly unfair provision may also provide sufficient reason for invalidating the entire agreement.
Unfair clauses include provisions giving one spouse an inferior share of marital assets, a clause giving one spouse possession of an especially valuable asset, such as a work of art.
Undue burden after the marriage
Sometimes, a provision in the prenup is not obviously unfair until after the couple has co-habited for a significant amount of time.
For example, a provision requiring the spouse with the lower income to pay an unfair share of living expenses until several months (or years) have passed may not immediately be seen as an undue burden.