Friday, January 9, 2015



Discussed  are Issues of Divorce, Validity of the parties' antenuptial agreement and  "Change in circumstances" (COC); Presented by FLINT DIVORCE LAWYER Terry R. Bankert 235-1970 1/9/15.#flintdivorce

The Michigan Court of Appeals  Decided 12/18/14,  among other issues  that the parties' antenuptial agreement was valid and enforceable, concluding that to invalidate it on the basis of one party's fault would contravene the agreement's clear and unambiguous language, and that as a matter of law, the defendant-wife failed to show that a change of circumstances [ COC] was sufficient to void it.[1] The claimed change in circumstances was the domestic violence  inflicted on the  wife  by the husband.

The overriding principle is that “parties who negotiate and ratify antenuptial agreements should do so with the confidence that their expressed intent will be upheld and enforced by the courts.” Id. at 145. [2]

The definition of an #antenuptial .  A prenuptial agreement, antenuptial agreement, or premarital agreement, commonly abbreviated to prenup or prenupt, is acontract entered into prior to marriage, civil union or any other agreement prior to the main agreement by the people intending to marry or contract with each other.[3]
The content of a prenuptial agreement can vary widely, but commonly includes provisions for division of property and spousal support in the event of divorce or breakup of marriage.[3]
They may also include terms for the forfeiture of assets as a result of divorce on the grounds of adultery; further conditions of guardianship may be included as well.[3]
It should not be confused with the historic marriage settlement which was concerned not primarily with the effects of divorce but with the establishment and maintaining of dynastic families.[3]
In some countries, including Belgium and the Netherlands, the prenuptial agreement not only provides for the event of a divorce, but also to protect some property during the marriage, for instance in case of a bankruptcy.[3]
Postnuptial agreements are similar to prenuptial agreements, except that they are entered into after a couple is married.[1]     [3]

The  Defendant wife in this case is trying to set aside the prenuptial agreement she signed.
Her argument is essential she could not foresee her husband would be a wife beater when she signed the prenuptial agreement.

Defendant  here did not provide any case law supporting "her position that someone's 'fault' in a divorce can constitute an unforeseen" COC. Further, assuming that the alleged abuse "occurred and was unforeseeable," this COC was "not sufficient to void the parties' antenuptial agreement in this instance.[1]

The types of changes of circumstances that may void an otherwise valid antenuptial agreement must relate to the issues addressed in the antenuptial agreement.[1]

Since the primary focus of the antenuptial agreement addressed spousal support and the division of the parties' assets, any changes of circumstances must relate to these aspects, and here, the domestic abuse does not." The court found that Hutchison did not stand for the proposition that abuse, alone, can constitute a sufficient COC to void an otherwise valid antenuptial agreement.[1]

Defendant here  appeals as of right a judgment of divorce entered by the trial court. We  the Michigan COurt of Appeals affirm in part, reverse in part, and remand for further proceedings. [2]

The parties signed an antenuptial agreement on September 9, 1993, two days before their wedding on September 11, 1993. This case primarily deals with the validity and enforcement of that antenuptial agreement.[2]


It said “ In the event that the marriage . . . terminate[s] as a result of divorce, then, in full satisfaction, settlement, and discharge of any and all rights or claims of alimony, support, property division, or other rights or claims of any kind, nature, or description incident to marriage and divorce (including any right to payment of legal fees incident to a divorce), under the present or future statutes and laws of common law of the state of Michigan or any other jurisdiction (all of which are hereby waived and released), the parties agree that all property acquired after the marriage between the parties shall be divided between the parties with each party receiving 50 percent of the said property”.[2]

However, notwithstanding the above, the following property acquired after the marriage will remain the sole and separate property of the party acquiring the property and/or named on the property: [2]

a. As provided in paragraph Two and Three of this antenuptial agreement, any increase in the value of any property, rents, profits, or dividends arising from property previously owned by either party shall remain the sole and separate property of that party.[2]

b. Any property acquired in either party’s individual capacity or name during the marriage, including any contributions to retirement plans (including but not limited to IRAs, 401(k) plans, SEP IRAs, IRA rollovers, and pension plans), shall remain the sole and separate property of the party named on the account or the party who acquired the property in his or her individual capacity or name.[2]
* * *
8. Each party shall, without compensation, join as grantor in any and all conveyances of property made by the other party or by his or her heirs, devises, or personal representatives, thereby relinquishing all claim to the property so conveyed, including without limitation any dower or homestead rights, and each party shall further, upon the other’s request, take any and all steps and execute, acknowledge, and deliver to the other party any and all further instruments necessary or expedient to effectuate the purpose and intent of this agreement.[2]
* * *
10. Each party acknowledges that the other party has advised him or her of the other party’s means, resources, income, and the nature and extent of the other party’s properties and holdings (including, but not limited to, the financial information set forth in exhibit A attached hereto and incorporated herein by reference) and that there is a likelihood for substantial appreciation of those assets subsequent to the marriage of the parties.[2]

Included with the agreement was plaintiff’s disclosure statement, which provided that he already had approximately $400,000 in net worth.[2]

Because the antenuptial agreement prohibited the award of any spousal support, the trial court did not award any.[2]


In Michigan, antenuptial agreements “may be voided (1) when obtained through fraud, duress, mistake, or misrepresentation or nondisclosure of a material fact, (2) if it was unconscionable when executed, or (3) when the facts and circumstances are so changed since the agreement was executed that its enforcement would be unfair and unreasonable.” Reed v Reed, 265 Mich App 131, 142-143; 693 NW2d 825 (2005). The party challenging the validity of an antenuptial agreement carries the burden of proof and persuasion. Id. at 143. [2]

“To determine if a prenuptial agreement is unenforceable because of a change in circumstances, the focus is on whether the changed circumstances were reasonably foreseeable either before or during the signing of the prenuptial agreement.” Woodington v Shokoohi, 288 Mich App 352, 373;793 NW2d 63 (2010).[2]


However, generally, assets earned by one spouse during the marriage are nonetheless considered part of the marital estate. Korth, 256 Mich App at 291. When dividing the marital estate, trial courts may consider the following factors:
(1) the duration of the marriage, (2) the contributions of the parties to the marital estate, (3) the age of the parties, (4) the health of the parties, (5) the life situation of the parties, Prenuptial agreements . . . provide . . . people with the opportunity to ensure predictability, plan their future with more security, and, most importantly, decide their own destiny.[2]

The overriding principle is that “parties who negotiate and ratify antenuptial agreements should do so with the confidence that their expressed intent will be upheld and enforced by the courts.” Id. at 145. [2]

In this case, there is an antenuptial agreement that unambiguously provides that “[a]ny property acquired in either party’s individual capacity or name during the marriage . . . shall remain the sole and separate property of the party named on the account or the party who acquired the property in his or her individual capacity or name.” Nevertheless, defendant claims that the trial court incorrectly refused to consider dividing the property instead pursuant to MCL 552.23(1) and MCL 552.401. [2]
Presented by FLINT DIVORCE ATTORNEY  Terry R. Bankert 235-1970 1/9/15.#flintdivorce

Court: Michigan Court of Appeals (Published),Case Name: AXXXXX v. AXXXXX
e-Journal Number: 58909,Judge(s): Wilder, M.J. Kelly, and Fort Hood Decided 12/18/14

AXXXXX v AXXXXX,Before: M.J. Kelly, P.J., and Wilder and Fort Hood, JJ.,
Published Michigan Court of Appeals Opinion,Docket No(s) 308194
Lower Court Docket No(s) 10-110358-DM,Wilder, J.


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