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Parties cannot waive, in an antenuptial agreement, the statutory authority of a court to invade a party’s separate estate when ordering a property division in a divorce, said the Michigan Court of Appeals on remand in <a href="http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20170131_C308194_99_308194O.OPN.PDF" target="_blank" rel="noopener">Allard v. Allard, No. 308194</a>. Provisions of Michigan’s divorce statute, according to the court, clearly demonstrate that the Legislature intends circuit courts to have discretion to allocate separate assets if doing so is necessary to achieve equity. Any agreement that attempts to bind that equitable authority of the court is necessarily void as against both statute and public policy. 
  
The court had the case on remand from the Michigan Supreme Court, which ruled that an antenuptial agreement that does nothing more than divide property between marital estates and separate estates does not shield a party’s separate estate from being invaded under MCL 552.23(1) and MCL 552.401, even where such an invasion is contrary to the antenuptial agreement. Our earlier post on the prior Court of Appeals’ decision can be found <a href="http://www.wnj.com/Blogs/Appellate/December-2014/COA-upholds-validity-of-antenuptial-agreements-eve" target="_blank" rel="noopener">here</a>, and our post on the Supreme Court decision giving rise to the instant opinion can be found <a href="http://www.wnj.com/Blogs/Appellate/May-2016/Prenups-are-not-ironclad-where-divorce-could-leave" target="_blank" rel="noopener">here</a>. 
  
MCL 552.23(1) allows a court to award either divorcing party a portion of the real and personal estate of their counterpart where the property in the marital estate initially awarded is insufficient for family support and maintenance. MCL 552.401 allows for a similar invasion of the separate estate where it is proven that the counterparty contributed to the acquisition, improvement, or accumulation of the property sought. MCL 552.12 reinforces those principles by providing that divorce actions “shall be conducted in the same manner as other suits in courts of equity.” 
  
The court found that those statutes do not grant the parties to a divorce any statutory right, say, to petition the court to invade the separate assets. Instead, the statutes merely enable the circuit court to do so. The parties, the court concluded, therefore have no discernible rights to waive, and any attempt to bind the court’s equitable authority violates the statute and is therefore void. 
  
The court remanded proceedings to the trial court to revisit its decision to award extra child support after concluding that it could not invade the plaintiff’s separate assets when awarding spousal support necessary for the support and maintenance of the children.

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Jason L. Byrne

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COA: Prenups cannot deprive court’s ability to divide property in a divorce

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COA: Prenups cannot deprive court’s ability to divide property in a divorce

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