Prenuptial Agreement Basics

Getting married and starting a new life is a thrilling time.  During this excitement, no one wants to contemplate the potential end of the relationship.  Prenuptial agreements are contracts designed to do precisely that.  A prenuptial agreement is a contract that is designed to arrange the financial outcome of a divorce before the marriage even begins.  They are often used when parties want to be clear about what particular property is separate property and will not be divided in divorce, the availability of spousal maintenance, or specify that debt one spouse brings into the marriage will remain that spouse’s sole responsibility in the event of divorce.

These contracts are generally enforceable in Wisconsin, but there are important rules that must be followed for the court to uphold a prenuptial agreement.  The agreement must be in writing and it must be signed by both parties.  The agreement must also be signed “in contemplation of marriage,” meaning that the parties negotiated and signed the contract with the view that they were about to get married.  The document becomes valid once the marriage takes place.  By contrast, a prenuptial agreement will be unenforceable if 1) the spouse with substantially more assets badgered or cajoled the other spouse into signing; 2) the agreement is grossly unfair; or 3) one of the spouses failed to make a full and accurate disclosure of assets before the parties signed the agreement.  It is permissible for only one party to be represented by a lawyer during the process, but it is advisable for both parties to retain counsel.  The parties cannot be represented by the same attorney or the agreement will be unenforceable.

Although prenuptials can be useful to simplify the financial issues in case of divorce, it is important to also understand that they have limits.  Provisions that cap child support or pre-determine child custody are unenforceable.  The reason for this is that courts do not want to support a party’s ability to “buy” child custody by waiving property rights or spousal maintenance.  Similarly, child support is meant to help support the child, and a parent should not be able to use support as a bargaining chip in a prenuptial agreement.

If you are considering a prenuptial agreement, call us today.  We can discuss your goals, your assets, and whether a prenuptial agreement is right for you.

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