– from Emily J. in South Milwaukee, WI


Question Details:

Before we got married, my husband and I agreed to a prenuptial agreement. After years of marriage, we decided to make a postnuptial agreement that nullified the prenuptial one. Soon after that agreement, my husband asked me to quit my job. I couldn't imagine a divorce at the time, so I agreed. All of my past earnings went into our joint account. About a year ago, I became ill and now I need assistance. Now my husband wants a divorce. According to the postnuptial agreement, I will have nothing and  I have no means of working. After living well-off for years, I will be essentially homeless and living off of government assistance. Is a postnuptial agreement the last word in a divorce?

Family Law Attorney Response:

A postnuptial agreement is generally accepted as equitable and enforceable upon divorce, depending on the precise language used in the agreement of property division.

However, as seen in the case of Button v. Button 131 Wis. 2d 84, 388 N.W.2d 546 (1986), a situation occurred where the wife had fallen ill and monetary complications had also arisen. The trial court enforced the terms of the postnuptial agreement. The wife appealed and the supreme court took jurisdiction. The supreme court reversed and remanded. They did this based on the notion that while framing the agreement, it was based on foreseeable expectations during marriage, as after marriage is unforeseeable. However, what may seem fair at the time of execution, may not be fair upon divorce.

My advice is to contact an attorney right away to discuss your case in detail before proceeding.

Dan Exner, J.D.

Family Law Attorney

lexis-nexis-image lawyers-image justia-image hg-image findlaw-image avvo-image