A prenuptial agreement in Michigan is enforceable under MCL 557.28, but only if it clears a three-part test the Michigan Supreme Court laid down in In re Estate of Benker in 1982: the agreement was signed voluntarily with full disclosure of each party’s assets, both parties had a meaningful opportunity to consult independent legal counsel, and the terms were fair, equitable, and reasonable when signed.1Michigan Legislature. Michigan Compiled Laws 557.28 – Contract Relating to Property Made in Contemplation of Marriage2State of Michigan Court of Appeals. Richard v Richard – Opinion Miss any one of those three and the agreement is vulnerable to being set aside.
Voluntariness means no fraud, no duress, no significant mistake, and both parties with the legal capacity to understand what they are signing and what rights they are giving up. Fairness is judged as of the signing date. A spouse who later prospers more than the other does not, by that fact alone, break the agreement: in Reed v. Reed, the Michigan Court of Appeals reversed a trial court that had used “changed circumstances” to invalidate an otherwise valid prenup.3FindLaw. Reed v Reed
Full Financial Disclosure Is Where Most Prenups Fail
Each party has to lay out a complete financial picture before signing. Every bank account, retirement account, investment portfolio, real estate holding, and business interest. Current income shown through tax returns and pay stubs. Debts too: student loans, credit card balances, mortgages.
These details are typically compiled into a schedule attached to the agreement as an exhibit, and courts treat that schedule as the backbone of the contract. Hide a brokerage account or undervalue a business and the whole agreement can be challenged on the grounds the other spouse never made an informed decision. Even an unintentional omission can open the door. The standard is “fair disclosure,” meaning each party had enough information to understand what they were agreeing to and what they were giving up.2State of Michigan Court of Appeals. Richard v Richard – Opinion
Why Each Spouse Should Have Their Own Attorney
Michigan does not technically require separate lawyers. But the Benker test asks whether each party had a meaningful opportunity to obtain independent legal counsel, and courts weight the presence or absence of that opportunity heavily when deciding whether to enforce the deal.2State of Michigan Court of Appeals. Richard v Richard – Opinion
When one attorney drafts the prenup and the other spouse signs with no legal review, the agreement is not automatically void, but it becomes much easier to attack. In Allard v. Allard (2014), the wife signed a prenup presented about ten days before the wedding without an attorney and later tried to set it aside. Both the trial court and the Court of Appeals upheld the agreement, finding that the lack of counsel alone was not enough to void it. The case still illustrates the risk: the challenge went all the way to the appellate level. Having separate attorneys review the agreement is the single most effective way to insulate it from attack.
What a Michigan Prenup Can Cover
Couples have wide latitude in deciding what goes in. The most common provisions deal with how property is classified and divided:
- Designating assets each spouse owned before the marriage as separate property that stays off the table in a divorce. Without this, appreciation on those assets during the marriage can become subject to division.
- Specifying exactly how real estate, businesses, retirement accounts, and other assets will be split, rather than leaving it to a judge.
- Waiving, capping, or setting a formula for spousal support. This removes one of the most unpredictable elements of divorce litigation.
- Assigning responsibility for pre-existing and marital debts so one spouse is not saddled with the other’s obligations.
- Keeping any growth in the value of a premarital business or investment with the original owner.
Some couples add sunset clauses that cause the prenup to expire or trigger modified terms after a set number of years. These are a negotiating tool when one spouse is uncomfortable with a permanent waiver of rights early in the marriage.
Estate and Inheritance Waivers
A prenup in Michigan is not only a divorce document. Under MCL 700.2205, a spouse can waive, in whole or in part, their rights to an intestate share, homestead allowance, elective share, exempt property, and family allowance through a written contract signed after fair disclosure.4Michigan Legislature. Michigan Compiled Laws 700.2205 That matters most in second marriages or when either spouse has children from a prior relationship. Without a waiver, a surviving spouse can claim a share of the deceased spouse’s estate no matter what the will says, which can redirect assets away from children or other intended beneficiaries. If you use a prenup to control inheritance outcomes, coordinate it with your will and trust so the documents tell the same story.
What a Michigan Prenup Cannot Cover
Michigan courts draw a firm line at anything involving children. A prenup cannot set, limit, or waive child support. Courts determine child support based on the child’s needs and both parents’ financial circumstances at the time of separation, and no private contract between parents can override that obligation. Any clause fixing or eliminating a support amount will be struck down.
Custody and parenting time are off-limits for the same reason. These decisions rest with the court, which evaluates the child’s best interests based on conditions that exist when the parents separate, not conditions years earlier when the prenup was signed. Including custody terms does not void the rest of the agreement, since courts typically sever the offending provision and enforce the remainder, but it signals poor drafting and can invite closer scrutiny of the whole document.
Signing Requirements and Timing
The agreement must be in writing and signed by both parties. Notarization is not legally required for validity, though having a notary verify the identities of the signers adds a practical layer of protection against future claims of forgery. Witnesses serve a similar protective function and are also not mandated by statute.
Michigan law requires only that the agreement be signed before the wedding, even the day before. Timing still matters. Presenting a prenup days before the ceremony, when invitations have gone out, deposits are nonrefundable, and family has traveled, creates exactly the kind of pressure that supports a duress argument. The Allard ten-day timeline survived the challenge, but duress is evaluated case by case, and handing your future spouse a complex legal document at the rehearsal dinner is an avoidable risk. Starting the conversation months in advance gives both parties time to review terms, consult attorneys, negotiate changes, and sign without any claim that the schedule forced someone’s hand.
After signing, each spouse should keep an original stored somewhere secure and accessible. The agreement does no good if nobody can find it when it is needed.
Changing or Replacing the Agreement After the Wedding
A prenup is not permanent. Couples can modify or replace it through a written amendment signed by both parties, and Michigan courts treat postnuptial agreements, signed after the wedding, similarly to prenups with a few added wrinkles.
The core requirements still apply: voluntary execution, full financial disclosure, fair terms. Postnups face an extra layer of scrutiny because spouses owe each other fiduciary duties of good faith and fair dealing that do not exist between two unmarried people negotiating a prenup. An agreement that takes advantage of a spouse’s vulnerability during the marriage, whether financial dependence, illness, or threats of divorce, will draw skepticism. Courts have occasionally questioned whether postnuptial agreements have adequate legal consideration, since the marriage itself (which serves as consideration for a prenup) has already occurred. Modern Michigan cases generally find consideration in the mutual promises and the continuation of the marriage, but the issue can surface in litigation.
What Happens Without a Prenup
Understanding what a prenup replaces helps you decide whether you need one. Michigan is an equitable distribution state, meaning a court divides property in a way it considers fair under the circumstances, which does not necessarily mean 50/50. Under MCL 552.401, a court may award all or a portion of one spouse’s property to the other if the evidence shows that spouse contributed to acquiring, improving, or accumulating the property.5Michigan Legislature. Michigan Compiled Laws 552.401
Without a prenup, everything is on the table for the judge: length of the marriage, each spouse’s earning capacity, contributions to the household (including nonfinancial ones like raising children), health, age, and the needs of the parties. Property you owned before the marriage may still be protected as separate in some circumstances, but any increase in its value during the marriage can become divisible. Business owners and people with significant premarital assets face the most exposure, because a judge has broad discretion to reach those assets based on the equities of the case. A prenup replaces that judicial discretion with terms the couple agreed to in advance, which is either a benefit or a drawback depending on how the terms were negotiated.