A prenuptial agreement can protect you. At its simplest, a “prenup” is an agreement a couple enters into before marriage which defines their rights and responsibilities. Most commonly, prenuptial agreements will identify which property is subject to division in a divorce or what inheritance rights they will have in the event of death.
Do You Need a Prenup?
Some people are hesitant to get a prenup, believing that it will doom a marriage. However, there are definite situations where a prenup is helpful:
- One or both spouses have large premarital debts. You can use the prenup to assign the debt upon divorce.
- One or both spouses have substantial income or assets. You can decide ahead of time how assets will be divided in a divorce.
- There is a sizable disparity in the spouse’s wealth or income. You can use the prenuptial agreement to determine how many assets the lower-earning spouse will receive in a divorce.
- One or both spouses own a business. A prenuptial agreement is a great way to keep the business legally separate from your spouse.
- One or both spouses have children from a previous marriage. You can protect your children’s inheritance using a prenup.
Without a prenup, Wisconsin family law determines each person’s legal rights. For example, you might have spent decades building a small business. But, upon divorce, your ex could receive a share of the equity—even if he never lifted a finger to help grow the company—which could jeopardize its future.
What Is Included in a Prenup?
A prenup has a limited scope, because Wisconsin courts won’t enforce all provisions that some people might include.
Most commonly, a prenuptial agreement can do the following:
- Define what property is marital or individual. This matters if a couple divorces, as Wisconsin requires an equitable distribution of marital property only. Each spouse is typically free to exit a marriage with their individual property.
- Assign responsibilities for debt. You must realize, however, that creditors have legal rights against anyone who signed for the debt, regardless of what is in the prenuptial agreement.
- Waive a spouse’s right to an elective share of the estate upon death. This can help preserve more of the estate to pass on to children from an earlier relationship.
- Decide who gets pets, since pets are considered personal property.
There are certain provisions which are not enforceable and shouldn’t be included. For example, you can’t waive child support or create obligations for sexual relations. We encourage anyone interested in a prenuptial agreement to meet with a Milwaukee family law attorney to review.
Can You Set Maintenance (Alimony) with a Prenup?
Not entirely. The existence of a prenuptial agreement is one factor a judge will consider when deciding whether to award maintenance. However, the prenup doesn’t have the same force that it does when it comes to marital property. We recommend discussing concerns regarding maintenance with an attorney.
Prenuptial Agreements: Do’s and Don’ts
If you are interested in a prenup, there are certain steps you should take—and other steps to avoid taking. Let’s start with what you should avoid doing:
- Don’t spring the prenup on your fiancé the day before your wedding. They must have adequate time to review and possibly negotiate different provisions. Judges will refuse to enforce a prenuptial agreement if your spouse didn’t enter it freely.
- Don’t share an attorney. Each spouse should have their own attorney to draft, review, and revise a prenuptial agreement. This ensures your rights are protected.
- Don’t hide assets or debts. You will need to make a full disclosure of your finances before signing a prenuptial agreement.
- Don’t draft your own prenuptial agreement. Fill-in-the-blank templates are rarely adequate and aren’t drafted to comply with Wisconsin law. Although you might save a little money upfront using a template, you could potentially lose a lot of your wealth if a judge refuses to enforce whatever it is you signed.
Here are the steps we recommend taking to create an airtight, valid prenup:
- Discuss the possibility of a prenuptial agreement with your partner. The process is much easier when both are onboard.
- Hire your own Milwaukee prenuptial agreements attorney who is familiar with the relevant law. This attorney will know what to include and what to leave out.
- Be honest with your attorney about what you want out of the agreement. If you are the lower-earning spouse, for example, you might insist on receiving a substantial amount of property upon divorce.
- Provide your attorney with complete and accurate financial information in a timely manner.
- Plan on the drafting process taking a few months. In many situations, back-and-forth negotiation takes place. This is actually ideal, since it shows a judge that neither spouse was coerced into signing something against their will.
When is a Prenup Invalid?
In some situations, a judge will decide that a prenuptial agreement is not enforceable. Usually, this happens only after a hearing where both sides present evidence. Some reasons to find an agreement unenforceable include:
- A spouse didn’t sign the agreement voluntarily.
- The agreement is so one-sided as to be unconscionable.
- A spouse didn’t receive adequate disclosure of their partner’s finances before signing the agreement.
For example, if your husband hid investment accounts and real estate, then a judge might set aside the agreement due to the lack of disclosure.
Can You Sign a Prenup After Marriage?
You can—but it’s now called a “postnup.” It can include many of the same provisions as a prenuptial agreement. The same limitations discussed above also apply.