Prenuptial Agreements in Wisconsin
Prenuptial agreements or prenups are called marital property agreements under Wisconsin’s laws. Prenuptial agreements outline who keeps what in the event of divorce or death. Prenups protect assets or protect against the other party’s debts. For the court to enforce a prenup, each party must disclose all their assets and debts and should consult with an attorney.
All marriages end.
Whether it be in separation, divorce, or death, all marriages have a legal endpoint.
That’s when prenuptial agreements come in. If something goes wrong and a marriage comes to a close, parties bring out the prenup. It makes property division go as smoothly as possible–as long as the prenup is valid.
Definition of a Prenuptial Agreement
A prenuptial agreement, or prenup, is a document that outlines how the couple divides their property if the marriage ends. Prenups can include everything from land to jewelry to retirement accounts.
Under Wisconsin law, prenuptial agreements are called marital property agreements. Because Wisconsin is a marital property state, the vast majority of a couple's property is split 50/50. A prenup allows parties to break from the 50/50.
Who Should Get a Prenuptial Agreement?
A prenup is great for anyone looking to plan for their financial future. Prenups prepare a couple for their future no matter the outcome.
Prenups are especially common and important in cases where one of the following is true:
- One or both spouses have a significant amount of premarital assets.
- One or both spouses own a business, especially a family business.
- One or both spouses hold or plan to hold significant debt.
- One or both spouses are remarrying.
- One or both spouses have children from a prior relationship.
To decide whether to get a prenup, you'll want to know what all can go into a prenup.
What Can Be Included in a Prenup
In general, a prenuptial agreement can include anything regarding either party’s property. A prenup outlines the couple's financials:
- each spouse’s rights and obligations to property gained before or during the marriage;
- the management and control of their property;
- a will, trust, or arrangement to carry out the prenup;
- the distribution of either or both party's property when an event occurs, such as a death;
- the ability for the living spouse to give the other party’s property to a designated person in the event of their death;
- either spouse’s ability to collect alimony (as long as both parties have sufficient financial means);
- the decision of which state’s laws to use when interpreting the prenup;
- a plan for how to deal with disagreements about the prenup; and
- any other matter affecting either party’s property that does not break Wisconsin’s public policies or criminal statutes.
Child Custody and Child Support in Prenups
The court will not enforce agreements of child support and child custody within a prenup. Parents are welcome to conclude whatever they want, it just won't matter legally. If parents include the information and later want to follow what they agreed to, they can. But either party can change their mind even if they willingly signed the prenup.
Parents and the court make child custody decisions based on what is in the child’s best interest. No one can know exactly what is in the child’s best interest until the situation is at hand.
Though child support is in the realm of money and assets, it too cannot be decided before separation occurs. This is because the child support belongs to the child, not either parent. Parents can only include what belongs to one or both of them in a prenuptial agreement.
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The Process of Getting a Prenup
A prenuptial agreement must be created before the marriage. Parties must already know they are going to get married and have a time picked out of when they will marry.
Then, parties separately come up with a list of the things they want to include in the prenup. Once each party knows what they want, they get together and make an agreement. The prenup can include some or all of the options listed above.
The court prefers for an attorney to draft the prenup. Each party should also speak with their own attorney before signing the prenup. Once it is signed by both parties and notarized, the couple can confidently get married.
Does a Prenup Have to Be Written by a Lawyer?
A lawyer or attorney does not have to write the prenuptial agreement. However, if each party does not consult with an attorney before signing the prenup, it will not be as strong later in court.
For the best outcome, one party first has their attorney draft up the prenup. Then, the other party has a different attorney review it. This helps prevent any manipulation or deception.
Reasons to Contest or Void a Prenup
The court cannot enforce a prenup if there is proof that any of the following occurred:
- The prenup was not signed voluntarily.
- A spouse did not disclose all their assets or financial obligations.
- The prenup was unreasonable or unfair when it was made.
The Wisconsin Supreme Court also defined how to test for these issues.
Ensuring the Court Will Enforce the Prenup
The Button v. Button case set out how to test if a prenup is inequitable. So, as long as your prenup passes these tests and keeps these factors in mind, it should be held up in court.
1.) The court knows each party signed the prenup voluntarily if–
- each party had their own legal counsel,
- each party had enough time to review the prenup,
- each party understood the terms of the agreement, and
- each party understood what rights they were giving up.
2.) A list of each party’s assets and debts attached to the prenup proves that each party disclosed their financial situation. The list should state the value of each item and be easily understood.
3.) To understand whether the prenup is fair, the court looks at–
- each party’s reason for getting a prenup;
- each party’s financial situation;
- the property each party brings into the marriage;
- each party’s financial obligations to people other than their spouse;
- each party’s earning capacity;
- a party’s expected contribution to the other’s future earning power;
- the future needs of each party;
- the age, physical, and emotional health of each party; and
- each party’s expected contribution to homemaking and child care.
For a prenup to hold up in court, each party needs an attorney. And, having a good attorney makes the process much easier. Call Sterling Law Offices if you are interested in talking with an attorney about getting a prenup–all we do is family law.
Other Common Prenuptial Agreement Clauses
Prenups revolve around property division, but they can include information on other topics. For example, a prenup could guarantee or limit the amount of alimony a party receives. Prenups also often include other types of clauses.
A sunset clause gives the prenup an expiration date. For example, say one party owns a business. Parties create a clause saying that the business owner keeps the entire business if they divorce in under 10 years. In this case, the sunset clause outlines that the prenup expires after 10 years.
Infidelity Clauses (Cheating Clauses)
An infidelity clause adjusts how the prenup is carried out if a party cheats. Without an infidelity clause, cheating does not automatically void a prenup.
Infidelity clauses can look different depending on the situation. For example, it could say that if one party cheats, the other party no longer has to be bound by the prenup. Infidelity clauses are difficult because anyone can say the other party cheated whether they did or not. Furthermore, everyone has different definitions of exactly what they considered cheating.
Are Postnuptial Agreements Better?
A postnuptial agreement is similar to a prenup, but it is created after the couple is married. Some people argue that postnuptial agreements are better than prenuptial agreements.
One reason a postnup could be better is that with a prenup one party could refuse to get married unless the other party signs the prenup. This is a problem because it is a form of manipulation and coercion. However, this manipulation can be avoided by both parties having their own attorneys.
Will a Prenup Protect Me from My Spouse’s Debts?
A prenup will protect you from your spouse’s debts if you create it to do so. Prenups focus on the division of all property, both assets and debts.
Can a Prenup Be Voided After Death?
One of the reasons people get prenups in the first place is to be prepared if one party passes away. Yet, a prenup can be voided if it was created unfairly or signed unwillingly. This is explained above in the “Reasons to Contest or Void a Prenup” section.
Frequently Asked Questions
Do prenups work in Wisconsin?
Prenups outline how property is divided in case the marriage doesn’t last. They are created when both parties come to an agreement before they get married.
If the couple decides to legally separate, get a divorce, or one passes away, the prenup comes into effect. As long as the prenup isn’t contested, it dictates what happens to their community property and individual property.
Is there a way to protect your assets without a prenuptial agreement?
How much does a prenup cost in Wisconsin?
To have an attorney draft a prenup costs anywhere between $1,500 to $3,000. It can cost more if there is a lot of back and forth between parties or if there are a lot of assets.
Each party needs their own attorney. The attorney who reviews the prenup with the other party will cost anywhere between $600 to $1,000. Again, it could cost more if there are a lot of back and forth revisions.
What cannot be included in a prenuptial agreement?
Child custody and child support arrangements cannot be included in a prenuptial agreement. Children are not property, and their best interest is dependent on the current situation. And child support is for the child, not the parent, so it cannot be restricted or limited in a prenup.
Can I do my own prenuptial agreement?
Technically, parties do not need attorneys to create their prenuptial agreement. However, it has less of a chance to stand up in court because the court cannot be sure it was created in good faith. Each party having an attorney ensures that both parties fully knew what they were agreeing to.
How long do prenuptial agreements last?
Prenuptial agreements last the entire marriage. But it could expire at a specific time if there is a sunset clause within the prenuptial agreement.
References: 1. WI Statute, § 766.58 (3)(a-h). Property Rights of Married Persons; Marital Property. | 2. WI Statute, § 766.58 (6)(a-c). Property Rights of Married Persons; Marital Property. | 3. A Decade-Post Button v. Button: Drafting Prenuptial Agreements. Garczynski, Randall. (1999, July 1). State Bar of Wisconsin.