How Do Prenuptial Agreements Work in Wisconsin?
Common stipulations within a prenuptial agreement in Wisconsin include the following:
- Who will manage both parties' property
- The arrangement for a will or trust in the event that one or both parties pass away
- The ability for the surviving spouse to amend the property rights as he or she sees fit in the event of his or her death (ex. distribute property on to children)
- Specify how to divide property in the event of a divorce.
Is a Prenup Right For You?
Although prenuptial agreements were initially shunned in courts due to the mistaken belief that they promoted the option of divorce, in 1983, the Uniform Premarital Agreement Act (UPAA) was created.
Wisconsin is one of many states that fell under the umbrella of this law. However, each state's laws may differ, including Wisconsin's right to revise a prenuptial agreement at a later date (known as a postnuptial agreement) and the inability to permanently dictate the amount of child support or child custody terms that a couple can have should they choose to divorce.
Wisconsin is one of nine states (along with Puerto Rico) in which courts typically divide property 50/50 (i.e., community property laws) instead of by equitable distribution (the judge decides what is “fair”).
Community property may also include:
- Earned wages
- Furniture and home purchases
- Business investment interests
- Business operation interests
- Mortgages on a family home
- Property owned before marriage
- Gifts or inheritances from loved ones or friends prior to marriage
- Separate bank accounts
Prenups Are Business, Not Personal
Wisconsin courts will frown upon adding personal decisions on prenups. The goal is to make sure both parties are on the same terms when it comes to finances.
For example, instead of documenting household chores or everyday obligations, include financially dependent decisions, such as which spouse will put the other through school. Instead of specifying religious preferences or how and where to spend holidays, specify who pays household bills and expenses. Instead of child-rearing choices, detail college savings instructions. Make sure the prenuptial agreement is business, never personal.
Frequently Asked Questions
Do Prenups Work in Wisconsin?
Wisconsin recognizes Marital property agreements as an alternative to the statutory community property division in the event of a divorce, as long as the agreement is equitable to all parties. Prenup and postnup are both examples of Marital property agreement, which must be signed by both parties in order to be enforceable.
The courts will assume the marital property agreement is equitable unless one of the parties argues against it. If you believe your agreement may not be equitable, speak with a family law attorney in order to better understand your options.
How Long Is a Prenuptial Agreement Valid?
Wisconsin recognizes Marital property agreements as an alternative to the statutory community property division in the event of a divorce, as long as the agreement is equitable to all parties. The Court will assume an agreement signed by both parties is an equitable and enforceable agreement unless one party contests the agreement.
The agreements do not expire unless a new agreement is made or the court finds that the terms of the agreement are no longer equitable as they may have been at the time the agreement was signed.
Is a Prenuptial Agreement Final?
Unfortunately, many find out the hard way that prenuptial agreements are not the “end all, be all” of final judgments. There are several conditions which may render a prenuptial agreement invalid. One of these conditions you have stated above: both parties must produce their financial records to the other, and full financial disclosure must be made. It is your responsibility to disclose this information to the other party. They are not required to seek this information.
In the case of Schumacher v. Schumacher 131 Wis. 2d 332, 388 N.W.2d 912 (1986), this was demonstrated when the court found that the prenuptial agreement was inequitable at its execution. The husband appealed, and the court of appeals affirmed. He petitioned the supreme court for review, and the supreme court also affirmed.
Does Prenup Mean No Alimony?
Marital property agreements such as prenups and postnups can address alimony and do not preclude you from being able to receive alimony. A court will assume that the terms of the agreement are equitable, if they are not, a party may be able to contest the marital property agreement in order to be awarded a more fair division of the asset.
Can a Judge Throw out a Prenup?
There are legal limitations that a prenup must abide to. A prenup can be thrown out if it includes details not allowed by law. Another reason a prenup could be thrown out is if one spouse didn’t fully disclose all of his or her assets in the initial negotiation. Also, if the prenup is deemed unfair, where one party would benefit way more than the other, it could be thrown out by a judge.
Do Both Parties Need a Lawyer for a Prenup?
It is in the best interest of both parties to have individual representation in the prenup/postnup process.
Typically, one attorney will draft the agreement with the representation of one party, while the other party hires an attorney to review and advise on that agreement. Having legal council ensures that the agreement is enforceable and can help deter issues that may arise with the court in the event of a divorce.
When Is a Prenuptial Agreement Viewed as One-Sided?
The best way to see if the agreement is fair is to contact an attorney in order to hear more about your agreement to know if it is equitable or not.
In the case of Button v. Button, 131. Wis.2d 84, 388 N.W.2d 546 (1986), the standard was set for determining if agreements are equitable. Prenuptial or postnuptial agreements are inequitable if the agreement fails to meet any of the three requirements: each spouse has made fair and reasonable disclosure to the other of his or her financial status; each spouse has entered into the agreement voluntarily and freely; and the substantive provisions of the agreement dividing the property under divorce are fair to each spouse.
The first two requirements must be assessed as of the time of the execution of the agreement. The third requirement is also assessed as of the time of the execution of the agreement and, if circumstances significantly changed the agreement, then also at the divorce.
What Is the Wisconsin Test for Unfair Prenuptial Agreements?
As discussed in Warren v. Warren, 147 Wis.2d 704, 433 N.W.2d 295 (Ct. App. 1988), Wisconsin follows a test that the trial court must perform on a prenuptial agreement. The trial court must determine whether, before the signing of the agreement, both parties were able to reasonably predict a particular event. The test is not whether they agreed the event would occur.
When Creating a Prenuptial Agreement Do I Need to Present Financial Records?
It is your responsibility that the opposing party knows and understands your financial records.
In Schumacher v. Schumacher 131 Wis.2d 332, 388 N.W.2d 912 (1986), the supreme court said imputed knowledge does not suffice when disclosing financial status to another party, there must be actual knowledge. Even if your wife had access, it is still your responsibility to ensure she understands and knows of your status.
Are Prenuptial Agreements Ever Void?
Prenuptial agreements are legally binding unless the court finds an agreement to be inequitable.
In Antuk v. Antuk, 30 Wis.2d 340, 387 N.W.2d 80 (Ct. App. 1986) discussed this topic. Within the case, the court of appeals said prenuptial agreements assure that the other will preserve separate estates which they bring to a marriage or which they thereafter acquired unto each of them without a claim. If an agreement expressly covers any property acquired by either prospective spouse before or after their marriage, the parties contemplated the appreciation attendant to such an asset to be covered by the agreement.
Will the Courts Enforce My Prenuptial Agreement If the Original Intent Was Not for Divorce?
As discussed in Webb v. Webb 148 Wis.2d 455, 434 N.W.2d 856 (Ct. App. 1988), the courts will look at the original intent of any pre-marital agreement in order to determine whether or not the agreement applies at the time of divorce. If you can prove the original intent did not mean marriage, you have a stronger case.
Can I Avoid Following a Previously Signed Prenuptial Agreement?
There would need to be more information about the prenuptial agreement on why you might not agree with it. In general, prenuptial agreements should be followed, but they can be changed or disallowed under certain circumstances.
In the case of Hengel v. Hengel, 122 Wis.2d 737, 365 N.W.2d 16 (Ct. App. 1985), a wife went against her lawyer's advice and signed a prenuptial agreement. At her divorce, she realized how the prenuptial agreement did not benefit her, however the court of appeals would not disallow the prenuptial agreement, as the ex-wife initially understood the agreement. The court of appeals advised that if you sign a prenuptial agreement, trial courts accept it if the agreement does not impair an obligation of contract and shows a fair test that it is equitable and enforceable.
Can a Prenup Presiding Over the Event of Death Be Exercised During Divorce?
Decisions like these are really at the sole discretion of the trial court. It will ultimately depend on how the court interprets your contract. It is possible that they will decide to use the prenuptial agreement as enforceable for a divorce resolution.
This was demonstrated in the case of Webb v. Webb 148 Wis. 2d 455, 434 N.W.2d 856 (Ct. App. 1988). This case saw a similar situation in regards to the antenuptial agreement. The court enforced the wording of the contract that waived their spousal rights under Wisconsin law. The wife appealed, and the court of appeals affirmed.
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