Once again a panel of the Michigan Court of Appeals misunderstood the facts of Lentz v Lentz, 271 Mich App 465 (2006), and improperly relied on it to declare a post-nup agreement void as against public policy because the parties "were not separated" when the agreement was signed. This perspective is, of course, contrary to the clear trend in Michigan case law recognizing that adults are free to enter into binding contracts on property, spousal support, and even child support (with some limitations) issues. Download Lentz_v_Lentz Postnup
Yesterday the C of A decided Cheff v Cheff, which you will find here: Download Cheff_v_Cheff
The Cheff panel quoted from the "bad facts make bad law" Wright v Wright, 278 Mich App 291 (2008), decision, stating:
Neither the Wright nor the Cheff panel read Lentz closely enough to realized that the parties in Lentz were not separated when they negotiated their post-nuptial agreement that clearly contemplated divorce. They negotiated the agreement at the kitchen table of the marital home in Canton Township over a six week period and then took their finished product to a lawyer who served as a scrivener to write it up. Yes, their marriage had broken down and the wife was spending increasing time at their Florida home, but Mr. and Mrs. Lentz were living in the same house and no action for divorce had been filed when the deal was struck. If the panel in Cheff had any doubts about the facts of Lentz, the briefs with citations to the testimony in Lentz verifying that the parties were not separated should have been readily available to them.
In Cheff there were other reasons to invalidate the agreement, such as non-disclosure. The panel did not need to reach the issue of whether postnuptial agreements are generally valid. What ever happened to the jurisprudential principle of deciding cases on the narrowing possible grounds?. Fortunately, Cheff is unpublished and non-binding. If only that were true of Wright.
A certified fellow of the American Academy of Matrimonial Lawyers, Scott Bassett maintains an active Michigan family law appellate practice long-distance from his residence in Florida, returning to Michigan as needed for appellate arguments. He also consults on complex family law cases and does research and brief writing on trial court matters. You may find his contact information at http://scottbassett.com
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