Michigan: C
Statutes
MCL 557.28 Public Act 216 of 1981
Separate Property
Assets can be defined as separate property instead of being split 50/50 as marital property, but Michigan courts retain equitable authority to "invade" either spouse's separate property under MCL 552.401 (contribution basis) and MCL 552.23(1) (need basis)
Unconscionability at Execution AND Enforcement
Courts review unconscionability at the time of execution and also at enforcement. Changed circumstances during the marriage can allow a court to modify the prenup in favor of a larger award of property or alimony.
Unconscionability Standard
A prenup is unconscionable if it leaves one spouse with insufficient funds for reasonable needs. Three Rinvelt factors must be satisfied: (1) no fraud, duress, or nondisclosure; (2) not unconscionable when executed; (3) circumstances haven't changed making enforcement unfair.
Alimony Minimum Subject to Court Discretion
Alimony can be waived in prenups, but Michigan courts retain equitable authority to award support if necessary for fairness under the Allard decision. Unlike some states, courts are not bound by alimony waivers if enforcement would be inequitable.
Timing
No minimum specified, but we recommend signing the prenup at least 30-60 days before the wedding, with both parties having 2-3 weeks to review the final version to minimize challenge risk.
Independent Counsel
Not required, but separate counsel dramatically strengthens enforceability if the agreement is later challenged. If both parties have independent counsel, courts will almost always find the agreement was not unconscionable when executed.
Financial Disclosure
Full and fair financial disclosure of all assets, debts, and income required. Comprehensive financial statements should be attached to the agreement. Failure to disclose (especially intentional concealment) renders the agreement unenforceable.
Medium Burden to Challenge
Challenging party must prove the prenup is invalid by preponderance of evidence (standard burden, not the higher "clear and convincing" requirement). The challenging party bears the burden of proof and persuasion.
Child Support and Custody
Child support and custody clauses are unenforceable and could undermine the entire agreement. Do not include.
Case Law
Allard v. Allard, 318 Mich. App. 583 (2017)
Court held that prenuptial agreements cannot deprive trial courts of equitable authority to invade separate property under MCL 552.23(1) and MCL 552.401, vacating a judgment that awarded husband $900,000+ and wife $95,000 with no alimony.
Allard v. Allard (Allard I), 308 Mich. App. 536 (2014)
Court held that LLCs created during marriage are separate legal entities, so property acquired by the husband's six LLCs during marriage was marital property subject to equitable distribution despite prenup language protecting property acquired "in his individual capacity."
In re Estate of Kenneth and Sharon (case name not fully cited)
Court of Appeals invalidated prenup signed on wedding day because there was no proof of full and accurate disclosure of assets and liabilities, allowing surviving spouse to inherit estate despite agreement to the contrary.
Reed v. Reed, 265 Mich. App. 131 (2005)
Court enforced 27-year-old prenup where husband accumulated millions during marriage while wife received minimal assets, ruling that long-term marriage, asset growth, and children were all reasonably foreseeable circumstances that did not justify invalidating the agreement.
Hodge v. Parks, 303 Mich. App. 552 (2014)
Court upheld postnuptial agreement signed during reconciliation after initial divorce filing, holding that postnups intended to promote harmonious marital relations and preserve marriage (rather than anticipate divorce) are enforceable if equitable.
Skaates v. Kayser, 333 Mich. App. 61 (2020)
Court enforced postnuptial agreement signed one month after marriage where parties had negotiated terms for 16 months intending it to be prenuptial, ruling it did not violate public policy because it was meant to facilitate marriage and included marriage-preservation provisions like mandatory counseling.
Ellis v. Ellis, Mich. Ct. App. Docket No. 349962 (Dec. 17, 2020)
Court clarified post-Allard that trial courts only possess authority to invade separate property "if equity demands it," and that Allard presupposed an inequitable agreement, suggesting equitable prenups will still be enforced without judicial invasion.
Silverman v. Silverman, Mich. Ct. App. Case No. 336905 (Aug. 9, 2018)
Court held that Allard does not permit courts to "redefine the terms of a prenuptial agreement to make the agreement more equitable," establishing that courts can invoke invasion statutes but cannot rewrite prenup provisions themselves.