By Aaron Thomas, Esq. · Updated November 4, 2026
Not absolutely. A Michigan prenup cannot strip a divorce court of its statutory power to reach separate property, so no agreement can promise separate property will never be touched. The power is limited to specific situations, and a well-drafted prenup still carries real weight.
Key Takeaways
- No Michigan prenup can absolutely guarantee separate property stays separate. In Allard v. Allard, the Michigan Court of Appeals held that spouses cannot, by prenup, deprive a divorce court of its statutory power to invade separate property under MCL 552.23(1) and 552.401.
- That power applies in two situations. MCL 552.23(1) lets a court reach separate property when the property awarded to a spouse is not enough for the suitable support and maintenance of that spouse or the children in their care, and MCL 552.401 lets it reach separate property the other spouse contributed to acquiring, improving, or accumulating.
- Contribution is the part you can plan for. Under MCL 552.401, mortgage payments, improvements, or labor that one spouse puts into the other’s separate asset can open it to division, and paying down a premarital asset with earnings made during the marriage is one way that can happen.
- A prenup still does real work. It defines what is separate and marital, sets expectations for crediting contributions, and is judged under Rinvelt’s three-factor test, with the burden on the challenger.
- Independent counsel is strongly recommended in Michigan, and postnups face an added public-policy limit that prenups do not.
The Short Answer: Not Absolutely
Couples often sign a prenup expecting a guarantee: whatever each spouse owned before the wedding stays theirs, full stop. In most states a well-drafted prenup comes close to delivering that. In Michigan, it cannot promise it, and an honest attorney should say so before the signing.
The reason is not a flaw in the agreement. It is a limit Michigan places on what any agreement can do. A court dividing property in a divorce keeps a statutory power to reach separate property in specific circumstances, and a prenup cannot waive that power.
What Allard Held
The case is Allard v. Allard (On Remand), 318 Mich. App. 583, 899 N.W.2d 420 (2017). After the Michigan Supreme Court sent the case back to decide whether spouses can waive these statutes by agreement, the Michigan Court of Appeals held that parties cannot, by prenuptial agreement, deprive a divorce court of its statutory power to invade separate property under MCL 552.23(1) and 552.401.
It is worth keeping the holding in proportion. Allard does not say prenups are unenforceable in Michigan. Michigan enforces prenups under a three-factor test, covered below. It says that one category of power, the statutory power over separate property, is not something spouses can contract away.
The Two Statutes Behind the Limit
Two statutes carry the power. MCL 552.23(1) lets a court award part of one spouse’s separate property when the property already awarded is not enough for the suitable support and maintenance of a spouse or children. MCL 552.401 lets a court reach separate property when the other spouse contributed to its acquisition, improvement, or accumulation.
The two have different practical weight. The support provision depends on how a divorce shakes out, which no one controls in advance. The contribution provision depends on how the couple lives during the marriage, which they do control.
Why Contribution Is the Part You Can Plan For
Here is the signature problem. Unless a prenup says otherwise, income either spouse earns during the marriage is marital property in Michigan, whether or not it ever touches a joint account. In Allard itself, the courts concluded that the couple’s prenup did not treat income earned during the marriage as separate. A spouse who owned the house before the wedding and keeps paying the mortgage from a paycheck earned during the marriage has put marital money into a separate asset. The other spouse may never have written a check, and the contribution can still exist.
Michigan’s contribution statute makes that pattern matter. The mortgage payments, the new roof, the unpaid labor on a renovation, or a spouse who stepped back from work so the other could build a business can each be described as a contribution to a separate asset. The routines people adopt to keep things separate are often what create the contribution, which is why separate property and premarital assets are harder to protect than most people expect.
A prenup cannot remove the court’s power, but it can do two useful things. It can classify each spouse’s earnings during the marriage, which changes what a mortgage payment from a paycheck represents. And it can state how contributions will be credited, so the spouses have already decided what a fair accounting looks like. That does not bind the court absolutely. It gives the court the couple’s own intentions to work from, instead of a blank page.
Thinking about a prenup?
Talk to an attorney before you decide. A 30-minute consultation is $150, credited toward your agreement if you move forward.
Schedule a Consultation →What a Michigan Prenup Still Does
Michigan enforces prenups under the three-part test from Rinvelt v. Rinvelt, 190 Mich. App. 372, 475 N.W.2d 478 (1991). A court asks whether the agreement was obtained through fraud, duress, mistake, or misrepresentation or nondisclosure of a material fact; whether it was unconscionable when it was signed; and whether the facts and circumstances have changed since signing so that enforcing it would be unfair and unreasonable. Under Reed v. Reed, 265 Mich. App. 131, 693 N.W.2d 825 (2005), the burden sits on the person challenging the agreement, and changes that were reasonably foreseeable when the agreement was signed do not meet the third factor.
So an agreement built with full disclosure, fair terms, and a signing nobody was pressured into holds up under that test, and agreements that anticipate foreseeable changes are better placed against the third factor. The statutory power is a specific exception layered on top. It is not a general override that lets a judge reopen any agreement they dislike.
Drafting Around the Limit
A careful Michigan agreement is honest about the limit and designs around it. It identifies the assets each spouse means to keep separate, and it sets out how contributions to those assets will be credited. It keeps separate accounts genuinely separate, because paying a premarital asset from a joint account is what creates the contribution. It anticipates the foreseeable changes that make a support claim more likely, such as children or a career pause, so neither spouse is left without reasonable means.
Independent counsel is strongly recommended in Michigan, because it bears directly on whether the agreement was fair when signed. No agreement can promise how a particular court will use its statutory power, and anyone who says otherwise is overselling. The goal is not a guarantee. It is an agreement that holds up as far as Michigan law allows. A prenup that is enforceable in court on those terms is built from the first draft to be complete, fair, and clear.
Getting a Michigan Prenup
The process begins with a consultation to understand your situation and the assets you want to protect, followed by full financial disclosure from both people, drafting built around the three-factor test and the Allard limitation, a round of review with each person’s own counsel, and signing. For the full picture of the firm’s Michigan work, see Prenups.com’s Michigan page, and for what an agreement costs, see what a Michigan prenup costs. Every Michigan agreement is prepared by our attorneys, including a Michigan-licensed attorney as counsel of record, from the first draft through signing. The flat-fee pricing is published in full, and you can schedule a consultation to talk through what you want to protect.
Frequently Asked Questions
Can a Michigan prenup guarantee my separate property stays separate?
No, not absolutely. A divorce court keeps a statutory power to reach separate property in specific situations, and a prenup cannot waive that power. The power is limited, and a well-drafted prenup still carries real weight.
What is the Allard limitation?
It comes from Allard v. Allard (Mich. Ct. App. 2017), which held that spouses cannot, by prenup, deprive a divorce court of its statutory power to invade separate property under MCL 552.23(1) and 552.401.
When can a Michigan court reach separate property despite a prenup?
In the two situations the statutes describe, and only where equity calls for it. MCL 552.23(1) applies when the property awarded is not enough for suitable support, and MCL 552.401 applies when the other spouse contributed to the acquisition, improvement, or accumulation of the property.
Does a prenup still protect me in Michigan?
Yes. It defines what is separate and marital, can set how contributions are credited, and is enforced under the Rinvelt three-factor test, with the burden on the person challenging it.
What is Rinvelt’s three-factor test?
A court asks whether the agreement was obtained through fraud, duress, mistake, or misrepresentation or nondisclosure of a material fact; whether it was unconscionable when signed; and whether changed circumstances have made enforcing it unfair and unreasonable. Changes that were reasonably foreseeable at signing do not meet the third factor.
Are postnups recognized in Michigan?
Yes, with an added limit that does not apply to prenups. Under Hodge v. Parks (2014), a postnup is not invalid simply because it was signed during the marriage, and a court may enforce one if it is equitable to do so, but courts will not enforce one that encourages separation or divorce, such as an agreement calculated to leave one spouse in a much more favorable position to abandon the marriage.
Sources
- Allard v. Allard (On Remand), 318 Mich. App. 583, 899 N.W.2d 420 (2017)
- Rinvelt v. Rinvelt, 190 Mich. App. 372, 475 N.W.2d 478 (1991)
- Reed v. Reed, 265 Mich. App. 131, 693 N.W.2d 825 (2005)
- Hodge v. Parks, 303 Mich. App. 552, 844 N.W.2d 189 (2014)
- MCL 552.23(1) and MCL 552.401 (statutory power over separate property)
- MCL 557.28 (contracts relating to property made in contemplation of marriage remain in force after the marriage)
