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.
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.
If any of the following scenarios apply, couples should consider getting a prenuptial agreement:
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.
Prenuptial agreements in Wisconsin can include some or all of the following issues:
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.
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:
Prenuptial agreements are legally unenforceable if any of the following statements are true:
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.
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.