How do Postnuptial Agreements Work in Wisconsin?

A postnuptial agreement is a marital property agreement that allows a married couple to set specific terms for the the division of assets in the case of a divorce. It works much like a prenuptial agreement, except that it is put in place during the marriage rather than beforehand. A postnuptial agreement is generally accepted as equitable and enforceable upon divorce in the state.

Is a Postnup Always Enforced During a Divorce?

Wisconsin Judges will usually enforce a postnuptial agreement, but will consider overriding the agreement if there has been a significant change in circumstance that was unforeseeable at the time of agreement.

In one example case, Button v. Button 131 Wis. 2d 84, 388 N.W.2d 546 (1986),[1] a situation occurred where the wife had fallen ill and monetary complications had also arisen. The trial court ruled to enforce the terms of the postnuptial agreement.

The wife appealed and the supreme court took jurisdiction. The supreme court reversed and remanded 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.

Is a Post-Nuptial Agreement a Good Idea?

Until recently, postnuptial agreements for asset division were only a good idea for a handful of Wisconsin of wealthy couples. State laws were very complex, so judicial interpretations varied greatly among different jurisdictions. Things were further complicated, if the couple moved across state lines, and the agreement could be judged as completely invalid.

Those issues have been resolved with the passage of the Uniform Premarital Agreement Act.[2] Instead of a tangled web of laws, there is now only one statute to follow in Wisconsin. While prior court decisions are still very important when it comes to interpretation, these decisions are not binding. Furthermore, if the couple moves to a neighboring state like Illinois or Iowa, roughly the same rules apply.

Frequently Asked Questions

What do post-nups cover?

A Post-nup is a Marital Property Agreement similar to a prenup but it is executed after the couple is married and can be done at any point after the marriage. These types of agreements are used to protect property, assets and other holding in the event of a divorce.

Wisconsin is a community property state, which assumes that all property and debt accrued during the marriage is jointly held. A marital property agreement is a way to ensure that certain assets or debts are allocated according to the couple's wishes in the event of a divorce.

Post-nups may only be used to address property and support, they cannot be used to dictate custody and placement or visitation in the event of a divorce.

Can post-nups be used to allocate debts in the event of divorce?

In Wisconsin, all debts incurred by either spouse during marriage are generally presumed to be shared marital debt after divorce. Thus, a spouse can be held liable for any debts incurred by the other spouse, regardless of whose name is attached to the debt. A spouse can even be held liable for marital debt they didn't know about.

Marital Property agreements such as Prenup or Post nups can be used to articulate an agreement between the parties on how to divide both debt and assets in the event of a divorce. However, the courts do not have to abide by the marital property agreement because oftentimes the agreements are old and what was fair at the time of the agreement, may not be fair at the time of the divorce.

Should I have a Marital Property Agreement?

Until recently, postnuptial agreements for asset division were only a good idea for a handful of Wisconsin of wealthy couples. State laws were very complex, so judicial interpretations varied greatly among different jurisdictions. Things were further complicated, if the couple moved across state lines, and the agreement could be judged as completely invalid.

However, marital property agreements are recommended for individuals looking to get married and already have a lot of personal assets. Speak to an experienced family law attorney about questions you may have.

How does a Marital Property Agreement work if I am already married?

A postnuptial agreement is a marital property agreement that allows a married couple to set specific terms for the division of assets in the case of a divorce. It works much like a prenuptial agreement, except that it is put in place during the marriage rather than beforehand. A postnuptial agreement is generally accepted as equitable and enforceable upon divorce in the state.

If I got divorced, what would happen if I did not have a Marital Property Agreement?

Without a Marital property agreement, the court will assume an equitable split of all assets and debts in accordance with Wisconsin community property laws. This means that at the time of a divorce all marital property, including debt, is divided equally while parties maintain their respective personal property.

Community property states like Wisconsin do not distinguish between who brought-in more assets to the marriage at the time of divorce. The Wisconsin Marital Property Act assumes that both parties contribute to the support of the marriage even if only one spouse is working outside of the home.

This process differs from many states that have Equitable Division. Equitable division is a division of the marital assets between the parties in a fair, but not necessarily equal manner.

Is a Postnuptial Agreement the Last Word in a Divorce?

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.


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