• Marital Agreement Worksheet

    Please complete this worksheet to consult with an attorney about a prenuptial or post-nuptial marital agreement.

  • Your Relationship

  • When do you intend to marry?
     - -
    2 digit month, 2 digit day, 4 digit year
  • Date Marry
     - -
    2 digit month, 2 digit day, 4 digit year
  • When did you marry?
     - -
    2 digit month, 2 digit day, 4 digit year
  • Date Married1
     - -
    2 digit month, 2 digit day, 4 digit year
  • Do you have a marriage license?
  • License1
  • When did you marry your current spouse?
     - -
    2 digit month, 2 digit day, 4 digit year
  • Date Married2
     - -
    2 digit month, 2 digit day, 4 digit year
  • Do you have a marriage license to your current spouse?
  • Discuss marriage laws in Michigan?

  • Your Contact Info

  • Gender
  • Gender1
  • Gender of Spouse/Partner
  • Gender2
  • Format: (000) 000-0000.
  • Format: (000) 000-0000.

  • Your Children

  • Do you have children from your current relationship?
  • Does {firstName} have children from a prior relationship?
  • Does {partnerspouseFirst} have children from a prior relationship?

  • Your Separate Assets

  • Does {firstName} own any assets solely in his or her name?
  • Select types of assets owned solely by {firstName}:
  • Does {partnerspouseFirst} own any assets solely in his or her name?
  • Select types of assets owned solely by {partnerspouseFirst}:

  • Your Separate Liabilities

  • Does {firstName} owe any debts solely in his or her name?
  • Select types of debt owed solely by {firstName}:
  • Does {partnerspouseFirst} owe any debts solely in his or her name?
  • Select types of debts owed solely by {partnerspouseFirst}:

  • Separate Property Worksheet

  • Separate Property Worksheet (A) for {firstName} {lastName}

  • Separate Property Worksheet (B) for {partnerspouseFirst} {partnerspouseLast}

  • Your Joint Assets

  • Do you own any assets jointly with your current spouse or partner?
  • Select types of jointly owned assets:

  • Your Joint Liabilities

  • Do you owe any debt jointly with your current spouse or partner?
  • Select types of jointly owed debt:

  • Your Planning Objectives

  • Please select your planning objectives that you want to discuss with an attorney:

  • Please complete an "Estate Planning Worksheet" prior to your consultation so that we can discuss your estate planning objectives. Link to Worksheet.

  • Drafting the Marital Agreement

  • Select topics to discuss:

  • Legal Requirement for Marriage in Michigan

  • Marriage:  Michigan does not recognize "common law" marriage by consent or length of time. MCL 551.2.

    Marriage License:  For a marriage to be valid, a marriage license must be issued by the county clerk and solemnized before an authorized person. MCL 551.101 and MCL 551.7. A social security number is required for the application, unless exempt under law. 551.102.  

    Age for Marriage:  (1) "An individual who is 18 years of age or older may contract marriage. As proof of age, the individual who intends to be married, in addition to the statement of age in the application, when requested by the county clerk, must submit a birth certificate or other proof of age." MCL 551.103. 

    Marriage in Another State:   "(1) Except as otherwise provided in this act, a marriage contracted between a man and a woman who are residents of this state and who were, at the time of the marriage, legally competent to contract marriage according to the laws of this state, which marriage is solemnized in another state within the United States by a clergyman, magistrate, or other person legally authorized to solemnize marriages within that state, is a valid and binding marriage under the laws of this state to the same effect and extent as if solemnized within this state and according to its laws." MCL 551.271.

    Note:  Michigan will not recognize an under-age marriage or common law marriage even if it was permissible in another state.

    Marriage in a Foreign Country:  Michigan will recognize marriages in a foreign county provided that they do not violate the laws and public policy of the State of Michigan (i.e. must be consentual, over the age of 18, with proof of age, and valid license issued).

  • Classification of Marital and Separate Property

  • Marriage:  Michigan does not recognize "common law" marriage by consent or length of time. MCL 551.2. For a marriage to be valid, a marriage license must be issued by the county clerk and solemnized before an authorized person. MCL 551.101 and MCL 551.7. Therefore, property solely owned by an unmarried person is never subject to division by a court.

    Marital Property:  Real and personal property that shall have come to either party by reason of the marriage. MCL 552.19.

    Separate Property:  Real and personal property that shall have come to either party outside of the marriage. This generally refers to property acquired before the marriage, or by gift or inheritance.

    Commingling of Separate Property:  Separate assets may lose their character as separate property and transform into marital property if they are commingled with marital assets and treated by the parties as marital property. Pickering v. Pickering.

    Appreciation of Separate Property:  Any appreciation of a separate asset that is derived from either spouse’s efforts during the marriage (active appreciation) belongs to the marriage as marital property. Any appreciation of a separate asset that is wholly attributable to market forces beyond a spouse’s control (passive appreciation) is classified as separate property. McNamara v. Horner, 249 Mich App 177 (2002).

    Titling of Property:  Title is not dispositive for classifying property as marital or separate.

    Length of Marriage:  Length of marriage does not relieve the court of its obligation to classify property as marital or separate. 

  • Enforcement of Pre and Post Nuptial Agreements (PNA)

  • Legal Basis for PNA:  A contract relating to property made between persons in contemplation of marriage shall remain in full force after marriage takes place. (MCL 557.28).  Post-nuptial agreements are encouraged as a matter of public policy, unless they promote divorce. Lentz v Lentz, 271 Mich App 465 (2006); Wright v Wright, 279 Mich App 291 (2008).

    Grounds to Void PNA:  Marital agreements are judicially voidable on the following grounds:

    • The agreement was obtained through fraud or duress;
    • The agreement was procured by mistake, misrepresentation, or non-disclosure of material facts;
    • The agreement was both procedurally and substantively unconcionable when executed;
    • The facts and circumstances have changed so that enforcement is unfair and unreasonable; or
    • A post-marital agreement promotes separation or divorce. Reed v Reed, 265 Mich App 131 (2005).

    Damages for Breach of PNA:  Damages are similar to those of any other contract:

    • Monetary Damages: Compensation to non-breaching party for the financial losses they incurred due to the breach.
    • Compensatory Damages: These aim to put the non-breaching party in the financial position they would have been in had the breach not occurred. 
    • Liquidated Damages: Predetermined amount of damages to be paid in the event of a breach (must be reasonable estimate of damages and not punitive).
    • Specific Performance: Requires breaching party to fulfill their specific obligations under the prenuptial agreement. 
    • Injunctive Relief:  Court to either do something or refrain from doing something to uphold the terms of the agreement.
    • Attorneys' Fees and Costs:  Prevailing party is entitled to recover their reasonable attorneys' fees and costs.

  • Division of Property Upon Divorce

  • Judicial Procedure: 

    1. Determine if grounds exist to void PNA (if challenged)
    2. Classify property as separate or marital
    3. Divide property based on classification
    4. Determine whether statutory grounds exist to invade separate property
    5. Challenger has burden of proof on all matters

    Division of Marital Property:  "Upon the annulment of a marriage, a divorce from the bonds of matrimony or a judgment of separate maintenance, the court may make a further judgment for restoring to either party the whole, or such parts as it shall deem just and reasonable, of the real and personal estate that shall have come to either party by reason of the marriage, or for awarding to either party the value thereof, to be paid by either party in money." MCL 552.19.

    Division of Separate Property:  Generally, marital property is divided between the parties, and the parties each take their separate property without invasion from the other party. Reeves v. Reeves, 226 Mich. App. 490, 494, (1997). 

    Invasion of Separate Property:  There are two statutory bases for court-ordered invasion of separate property:

    1. If the estate and effects awarded to either party are insufficient for the suitable support and maintenance of either party and any children of the marriage who are committed to the care and custody of either party...MCL 552.23; or,  
    2. If it appears from the evidence in the case that the party contributed to the acquisition, improvement, or accumulation of the property. MCL 552.401. 

  • Pros and Cons of Marital Agreements

  • Advantages of Marital Agreements:

    1. Full disclosure assets and liabilities
    2. Protect both parties' assets
    3. Identify marital and separate property
    4. Prepare to divide separate property upon divorce
    5. Reduce cost and acrimony of divorce
    6. Clarify how property will be distributed upon death
    7. Protect children from prior marriage
    8. Protect business interests from being split or devalued

    Disadvantages of Marital Agreements:

    1. May create uncertainty about marriage
    2. Cost of preparation
    3. Agreement is subject to judicial review
    4. Court may invade separate property
    5. Must avoid commingling separate property

  • Attorney Representation

  • It is a conflict of interest for one attorney to represent both parties to an agreement. Each party has a right to retain their own attorney. However, both parties may recognize this inherent conflict and voluntarily waive it. In that case, the following conditions will apply:

    • EPLG will draft the agreement and represent both parties in a manner that will fairly represent their mutual interest. 
    • EPLG will not attempt to secure an advantage for one party over the other.
    • Each party must request clarification of their rights if they do not understand any provision of the agreement.
    • An attorney-client privilege will not apply to any discussions held outside the presence of both parties.
    • Any documents provided by one party must be disclosed to both parties.  
    • A waiver of the conflict of interest must be signed by both parties.
  • Does either party want to retain their own attorney to review and negotiate this agreement?
  • Attorney
  • Do both parties agree to sign a waiver of conflict of interest with the conditions set forth above?

  • The parties must retain separate counsel or agree to waive the conflict of interest that arises from using the same attorney. 

  • Appreciation and Additions to Assets

  • As a general rule, the appreciation that accrues on separate property during the marriage through the efforts of either party (i.e. "actively managed") is construed as marital property.  Conversely, separate property that appreciates solely as the result of market forces (i.e. "passively managed") retains its character as separate property. In either case, a court may still invade the separate property pursuant to MCL 552.401.

  • Will the appreciation on separate property that is "actively" managed by either party during the marriage be construed as separate or marital property?
  • Active
  • Will the appreciation on separate property that is "passively" managed by either party during the marriage be construed as separate or marital property?
  • Passive
  • Will earnings, accumulations, and income derived from the personal service, skill, and work of one party (including additions to individual investment accounts) be construed as separate or marital property?
  • Income

  • Separate accounts should be maintained for earnings and income. 

  • Personal Property

  • The parties may agree to allow a surviving spouse to use their personal property for life or until the surviving party remarries. If the parties want to gift their personal property to a surviving spouse, then their respective estate plans should be updated accordingly. If a life estate trust is being used, then use of TPP should be specified in the trust.

  • Will a surviving spouse have the right to use a deceased spouse's personal property until remarriage or death?
  • Use TPP

  • Lifetime Use of Marital Residence

  • Do the parties own a home in which they will reside?
  • Home
  • How is the home owned?
  • Ownership
  • Will the owner allow the non-owner to reside in the home for life?
  • Life Estate

  • Recommended Terms of Life Estate Trust: 

    1. The trust is an individual revocable trust.
    2. The settlor of the trust is the homeowner.
    3. Ownership of the home will be transferred to the trust (do not use an LBD).
    4. Trustees:
      1. Option 1:  Trustees are both spouses who must act jointly to amend or revoke the trust; appoint an alternate trustee to act for the deceased settlor; alternate trustee and surviving spouse must act jointly.
      2. Option 2:  Settlor acts alone as primary trustee; select an alternate trustee who is not the beneficiary spouse. 
    5. The marital agreement will state that the trust may not be revoked without the consent of both parties.
    6. The marital agreement will state that the home may not be transferred without the consent of both parties. 
    7. The trust will become irrevocable upon the death of the settlor.
    8. The trust will state that the life estate terminates if the spouse remarries or vacates the property.

  • Go to Revocable Trust Worksheet to draft a life estate trust for the benefit of {whichParty3162}.

  • Payment of Income Taxes

  • The parties may file income tax returns separately or jointly during their marriage. Filing jointly will generally result in a lower tax rate. In that case, the parties may agree to pay the taxes in proportion to income or in equal shares.

  • How will the parties file income tax returns?
  • File Tax
  • How will each party pay their respective share of joint income taxes?
  • Pay Tax

  • Beneficiary Designation of Retirement Accounts

  • The parties may agree that a spouse will NOT be the beneficiary of their respective retirement accounts upon death. In that case, ERISA requires a spousal waiver form to be signed by the non-owner spouse. A marital agreement does NOT preempt ERISA rules with respect to spousal waiver. A spousal waiver is not required for Individual Retirement Accounts (IRA). 

  • Will each party name the other party as the pay-on-death beneficiary of their separate qualified retirement accounts?

  • A spousal waiver form must be obtained from each retirement plan administrator and returned to the administrator.

  • Termination of Agreement

  • Do the parties want the agreement to automatically terminate after a specified number of years of marriage?

  • Estate Planning

  • Select topics to discuss:

  • Post-Death Distribution of Separate Property

  • Without an Estate Plan

    • Married spouses have limited statutory rights to inherit separate assets from each other. (MCL 700.2102).
    • A decedent's spouse and children may also receive "allowances" from a probate estate. (MCL 700.2402-2404). 
    • Heirs of a deceased spouse also have limited statutory inheritance rights (MCL 700.2103).
    • Unmarried partners do not have any statutory rights to inherit property from a deceased partner. 
    • Spouses may waive all inheritance rights and allowances by using an "Estate Planning Waiver". 

    With an Estate Plan

    • Separate property may be distributed upon death with any of the following documents:
      • Last will and testament (subject to inheritance rights and allowances for a surviving spouse and children)
      • Irrevocable Trust
      • Revocable Trust
      • Account beneficiary designation
      • Ladybird deed

  • Estate Planning Waiver

  • Background

    Waiver of rights by surviving spouse:  "The rights of the surviving spouse to a share under intestate succession, homestead allowance, election, exempt property, or family allowance may be waived, wholly or partially, before or after marriage, by a written contract, agreement, or waiver signed by the party waiving after fair disclosure. Unless it provides to the contrary, a waiver of "all rights" in the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separate maintenance is a waiver of all rights to homestead allowance, election, exempt property, and family allowance by the spouse in the property of the other and is an irrevocable renunciation by the spouse of all benefits that would otherwise pass to the spouse from the other spouse by intestate succession or by virtue of a will executed before the waiver or property settlement." MCL 700.2205.

  • Add an Estate Planning Waiver to this agreement?
  • Waiver

  • Estate Planning Documents

  • Will the parties prepare an estate plan?

  • Go to Core Estate Plans Worksheet

    Go to Revocable Trust Worksheet

    Go to Trust Amendment Worksheet

  • Drafting Notes

    Enter special instructions for drafting.

  • Document Signing

  • Will documents be signed in-office?
  • Office
  • Will documents be signed by direction?
  • Direction

  • Attorney

  • Notary

  • Instructions to Submit Worksheet

    Please follow these steps to submit the worksheet to our office.
    1. Print the completed form by selecting the button below.
    2. Confirm that you are ready to submit the worksheet by checking the box below.
    3. Submit the worksheet to our office by selecting the Submit Form button below.
    4. Schedule a consultation by using our online calendar.

    Thank you!

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