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15850 W. Bluemound Rd. Suite 304 • Brookfield, WI 53005 • 262-788-5335

PRENUPTIAL AGREEMENTS

What is a prenuptial agreement?

A prenuptial agreement (also known as a Marital Property Agreement) is a document made by a couple before they marry concerning the ownership and treatment of their respective assets and income should the marriage fail, or should they die.  It can address both divorce and death, or just divorce, or just death.

After the parties disclose and exchange all their financial information, they may address the following issues in their prenuptial agreement:

  • Identification of property to be held separately or jointly
  • Responsibility for current and future debt
  • Spousal maintenance and alimony in case of divorce
  • Division and transfer of assets and property upon death or divorce
  • Identify estate planning measures (to make sure current or future children are taken care of)
  • Agreements concerning professional degrees or specialized education (to compensate one another if one party supports the other in getting advanced education and thus higher earnings)
  • Financial agreements affecting management of the marital estate (how bills will be paid and from what sources)
  • How joint payment of bills may or may not affect ownership of individually titled property

 

In general, Wisconsin does not disfavor prenuptial agreements, as long as the parties are fully informed when they enter into them.  This means making a full and accurate disclosure and exchange of all financial information that exists at the time; making sure the agreement is fair on its face when the parties execute it; making sure the timing of signing is fair and not coercive (3 days before marriage after someone is blindsided by the document for the first time is not going to be considered fair); making sure both parties have had the chance to consult with an attorney to protect their interests and gain an understanding of what they are signing.  Although separate attorneys are not absolutely required, it is recommended, to ensure the document will be enforceable down the road should the need occur.  The document may also be drafted by a mediator, a neutral who helps the parties negotiate their preferred terms.  This can then be reviewed by each party’s separate counsel as necessary. 

In Wisconsin, the document also needs to be fair when it’s time to enforce it, and obviously no one can know what life will bring down the road.  So no attorney can guarantee that any prenuptial agreement will be airtight at the time it needs to be enforced.  As drafter, we will do our best to make sure the document addresses the parties’ wants and needs, is equitable under the law in order to favor enforceability, and ensure our clients are well-informed so there is no coercion when signing.     

A post-nuptial agreement generally has the same effect in separating the assets and income of a couple, but is done after a couple is already married.  In cannot be done in anticipation of pending divorce, but is often entered into when there are financial concerns, health/addiction concerns, or ongoing concerns about the long-term stability of the marriage.  Often post-nups are entered into as a condition of staying in the marriage, but the same requirements of disclosure and fairness apply.