You Can’t Waive the Family Court’s Rights
Contract law is a fascinatingly complicated thing, with hundreds of rules that dictate what is allowed and what isn’t. There are several rules devoted entirely to determining which of your rights you are allowed to waive. For example, you cannot waive your Constitutional right to free speech, and thus give the government permission to censor you.
When two private entities contract with each other, the general driving force behind the law is that those two people should be as free as possible in their ability to contract. For example, in a prenuptial agreement, it’s completely acceptable for one party to waive their right to retain any marital property. But there’s a hitch: two Michigan statues ensure the court has both the authority and the imperative to ignore your prenup if the results would be “unconscionable to the court.”
Many couples assume that this is a relatively minor part of the law, and that they can waive their right to have the court separate their property entirely (leaving the process dictated entirely by the prenuptial agreement). This is a dire misconception, however, because the right in question doesn’t belong to the couple getting married — the right to separate property belongs to the court.
There is nothing whatsoever that a couple can do to waive the court’s rights. This has been presumed for decades, but finally came to a solid precedent-setting decision in January 2017 with the case Allard v Allard, CoA 308194. The Allard’s divorce case involved a prenup that explicitly stated that the couple waived the two statues that made the Michigan family court the final authority on division of property. That part of the prenup was invalidated by the Court of Appeals precisely because the couple do not have the legal grounds to waive a right that belongs to a third party (the court) which is not involved in the contract
The same, by the way, is true of any prenuptial agreement that attempts to waive the rights of any potential children of the marriage — and for the same reason. You can’t waive the rights of someone that isn’t party to your contract, and thank heavens! The ability of the family court to intervene in obviously unfair divisions of property and custody decisions is one of the strongest defenses American divorcees (and children!) have.
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