Prenuptial Agreements in Wisconsin

All too often, engaged couples are blissfully unaware that their upcoming marriage is a civil contract, so they aren't exploring their legal options or considering a prenuptial agreement. They might think, mistakenly, that "prenups" are only for the wealthy. In fact, a prenuptial agreement is useful tool that protects spouses in the event of separation, divorce, or even death, no matter how much money or assets they have.

• What Is a Prenuptial Agreement?
• Who Should Get a Prenuptial Agreement?
• What Issues Can a Prenuptial Agreement Cover?
• Can a Prenuptial Agreement Determine Child Custody and Child Support in Wisconsin?
• How Can I Ensure my Prenuptial Agreement Is Enforceable in Wisconsin?
• Can I Change or Terminate a Prenuptial Agreement After Marriage?

What Is a Prenuptial Agreement?

In Wisconsin, property a couple acquires during a marriage is called "community property," and in the event of divorce, family law judges will apply certain statutory guidelines to divide property equitably. A prenuptial agreement (also known as premarital or antenuptial agreement) is a legally binding contract that two people negotiate and sign with a view toward what will happen if the marriage ends in separation, divorce, or death. A prenup provides a way of avoiding lengthy or expensive legal disputes, by pre-determining the division of a couple's property, including land, buildings, retirement accounts, jewelry, clothing, or automobiles.

Who Should Get a Prenuptial Agreement?

If any of the following scenarios apply, couples should consider getting a prenuptial agreement:

• One or both spouses are bringing a lot of debt into the marriage.
• One or both spouses are bringing property into the marriage.
• One spouse is much wealthier or poorer than the other.
• One or both spouses are remarrying or have children.

This list is not exclusive. If you have any doubts about whether you should enter into a prenuptial agreement, contact a local family law attorney for advice.

What Issues Can a Prenuptial Agreement Cover?

Prenuptial agreements in Wisconsin can include some or all of the following issues:

• each spouse's rights and obligations regarding the other spouse's property, regardless of when or where the property was acquired or is located
• management and control of either or both spouses' property
• the distribution of either or both spouses' property upon divorce, death, or some other specified event
• either spouse's right to collect alimony, except that the terms of a prenuptial agreement can't result in one spouse having less than sufficient support to get by
• the making of a will, trust, or other arrangement to carry out the prenuptial agreement
• provisions that upon the death of either spouse, either or both spouses' property will pass without probate to a designated person
• the choice of law (meaning, which state's law will apply to interpret and apply the agreement—it could be in Wisconsin or somewhere else)
• an agreement to arbitrate disputes, and
• any other matter affecting either or both spouses' property that does not violate Wisconsin's public policy or criminal law.

Can a Prenuptial Agreement Determine Child Custody and Child Support in Wisconsin?

In Wisconsin, premarital agreements can't limit or cap the amount of child support that one parent would have to pay to the other in the event of a divorce, separation, or change in child custody. This is because the right to child support belongs to the child, not the parents. Courts must award child support in an amount that is fair and reasonable under the circumstances, regardless of any prenuptial agreement by the parents.

Similarly, child custody can't be decided in advance through a prenup. This is because child custody awards can only be decided by family law judges, who have to look at the facts and circumstances of each unique case and render a decision based on the child's best interests at the time of the separation or custody dispute.

None of this means that a prenup can't contain an agreement about child support and custody. If the parties divorce and decide to abide by the terms of their prenuptial agreement, then they can self-enforce provisions about child custody and support. However, if they disagree and wind up in family court, a judge will disregard any portions of the prenuptial agreement that address custody or child support.

How Can I Ensure my Prenuptial Agreement Is Enforceable in Wisconsin?

In 1983, a body of expert lawyers developed the Uniform Premarital Agreement Act ("UPAA"). The UPAA is a "model law" that was initially developed by the National Conference of Commissioners on Uniform State Laws in an effort to standardize the law surrounding prenuptial agreements and to ensure legal conformity across the fifty states. To date, many states have adopted the UPAA, though some have not.

The UPAA contains all the elements that the National Conference of Commissioners on Uniform State Laws believes should be present in a legally enforceable prenuptial agreement. Wisconsin has adopted some of the provisions of the UPAA.

For a prenuptial agreement to be valid in Wisconsin, all of the following requirements must be satisfied:

• The agreement has to be in writing and signed by both parties.
• The agreement does not have to be supported by consideration. "Consideration" is something of value that each party gives to the other as a show of support for the marriage contract.
• The agreement must have been written and signed "in contemplation of marriage," meaning that the parties must have negotiated and signed the agreement with a view toward a definite and upcoming marriage. Both parties must sign the document, and it becomes effective when they marry (or if they're already married, when they sign).

Prenuptial agreements are legally unenforceable if any of the following statements are true:

• One of the spouses didn't sign the agreement voluntarily because the other spouse, usually the spouse with more property, badgered, cajoled, manipulated, pressured, or deceived the other spouse into signing the agreement.
• The agreement was "unconscionable," meaning that it shocks the conscience and is grossly unfair to one spouse over the over.
• Either or both spouses failed to provide the other spouse with full and fair disclosure about the spouse's assets and liability.

Each spouse should retain his or her own attorney to review and negotiate the agreement. The spouses cannot share a lawyer, or the agreement won't be legally enforceable. However, it is permissible for one party to be represented by an attorney, even if the other party is not.

Can I Change or Terminate a Prenuptial Agreement After Marriage?

Yes. After the parties are married, they can revise the prenuptial agreement and it will be called a "postnuptial agreement." Both parties simply have to agree to the changes, and the new agreement must be in writing.