3.22.2006

PRE-NUPS NOT JUST FOR HOLLYWOOD

Pre-Nuptial (Ante-Nuptial) and Post Nuptial agreements are fully recognized and enforced in the State of Michigan.

When looking at the effect of these agreements they are governed by contract principles and courts look at these 3 questions and if the answers are NO the agreement will be upheld,

  1. Was the agreement obtained through fraud, duress, mistake or misrepresentation, or a non-disclosure of material fact?
  2. Was the agreement unconscionable when executed?
  3. Have the facts and circumstances changed since the agreement was executed so as to make its enforcement unfair or unreasonable?

Why would one want a pre-nuptial agreement you may ask?? Well the obvious answer is to protect against the gold-digging spouse.

The one other is usually in the second marriage situation when you have two people latter in life in their highest earning capacities. A good Pre Nuptial agreement coupled with a Good Estate Plan will protect children from a previous marriage.

Keep in mind you must disclose your complete net worth because failure to do so can cause the agreement not to be enforced.

However not completely destructive to the agreement you should give ample time for the other sided to seek independent counsel prior to signing the agreement. There have been cases that have stated that asking to sign minutes before the marriage ceremony is not sufficient duress to not enforce the agreement.

I believe a waiver of independent clause should be written into the agreement and should be initialed after it has been read.

Post Nuptial agreements are contracts entered into following the marriage ceremony. They are agreements similar to Pre Nuptials that settle property rights in the event of divorce. However they unlike Pre Nuptials need independent consideration apart from the actual marriage. Relinquishing of one's rights under Michigan Divorce Law is sufficient.

The one thing that will not be enforced are any agreements or clauses that involve children of the marriage.

Consult an attorney if you are considering a Pre Nuptial agreement because a validly executed one can help you save a lot in a divorce action.

3.11.2006

COMPETITION BRINGS OUT THE BEST!

This post is based on a friend of mine who had a legal contract issue. He signed a contract which had a non-compete clause in it.

His dilemma is that his current company is being sold to competitor on the other side of the state. It seems apparent that this sale will significantly undermine security in his job.

He has found a local competitor that would like to hire him and it is somewhat conditioned on him bringing about $100,000 or more in business with him.

Well I didn't have good news for him because unfortunately these clauses are strictly enforce in the State of Michigan. The only way we could blow it up is by showing that it is unreasonable or perhaps to broad which essentially means a lot of money to get him out of it.

*****HAVING TO SIGN THE CONTRACT WITH THE CLAUSE AND RISK NOT GETTING THE JOB, SALE, OR POSITION IS NOT A VALID DEFENSE***

To sum things up if you are confronted with a contract as such, ask for some time to read it over and consult an attorney. It may cost you an hours worth of attorney fees but will save you grief and the cost of trying to get it struck out of the contract.

3.06.2006

CHILD CUSTODY

In Michigan there are two types of child custody.

Physical Custody-when the parents have the child in their residence and are soley responsible for the day to day decisions for the child.

Legal Custody-when the parents have the right to decide on the MAJOR life decisions of the child (ex. Medical emergencies and education)

These can be granted as Joint or Sole.

This is were legal representation is important because once there is a Custody Order in effect, to change this a party must show a change in circumstances by clear and convincing evidence. (Which is a higher standard than preproderance of evidence)

If you have any questions or concerns contact an attorney.

cullengeisler@yahoo.com

3.01.2006

GET IT IN WRITING!!!

Here is a simple rule for all of you to reduce your need for legal services (or at least reduce the fees).

****Get all important transactions in writing signed by the party to be charged with the obligation******

Michigan's Statute of Frauds says that

  1. Contracts in cotemplation of Marriage
  2. Services which cannot be preformed in one year
  3. All INTERESTS IN LAND
  4. Executory Contracts
  5. Goods over $500
  6. A contract where one acts as a gurantor (guarantees a debt of another)

***MUST BE IN WRITING****

Now there are a few defenses on each one of these, the most important is partial performance which is evidence that there was an oral contract. (Fees add up here)

Not fulfilling the Statute of Frauds does not mean there is not a contract it just means that a court will not enforce it.

****GET YOUR CONTRACT IN WRITING SIGNED BY ALL PARTIES TO THE CONTRACT***