Leading Milwaukee Divorce Attorneys Explain How Premarital Property Agreements Work
Divorcing spouses seeking to enforce—or invalidate—a prenuptial agreement have options
Although many people are likely to have a cynical conception of written pre-marital agreements (so-called “prenups”) as a means for a spouse to escape from a marriage before it even begins, the state of Wisconsin was among the first states to adopt the Uniform Premarital Agreement Act into state law, establishing limitations and guidelines for couples wishing to enter into a valid property agreement prior to marriage, as well as setting forth standards by which Wisconsin family courts can determine the validity of an existing pre-marital agreement.
At the law offices of MacGillis Wiemer LLC, our team of skilled Milwaukee divorce attorneys provide dedicated representation to countless clients seeking to divorce their spouses. We have the knowledge and experience to review and analyze an existing prenuptial property agreement in order to ascertain its enforceability under Wisconsin law. We also have a proven track record of success guiding clients to the equitable solutions they need to help their families begin the next chapter.
What is a prenuptial agreement?
Although it is not necessarily a misconception that a prenuptial agreement is often made between men and women prior to marriage in anticipation of an eventual divorce, these agreements can also address many other issues that can arise during a marriage. These matters can include:
- Estate planning—When one or both spouses have a child from a previous relationship or marriage, a prenuptial agreement can help document testamentary intent and help to ensure that an estate does not become subject to a bitter dispute between spouse and children over their share of the estate under state intestacy laws.
- Tax planning—Spouses entering a marriage with complex assets and high net worth may choose to use a prenuptial agreement to establish agreements relating to those assets, such as the creation of a trust. These assets often include closely held businesses, inheritances, pensions or annuities, and a prenuptial agreement can avoid potentially adverse tax consequences.
- Protection from a spouse’s creditors—A prenuptial agreement can prevent one spouse’s existing debts from becoming marital debts, allowing creditors to make claims against the other spouse’s income or individual property.
However, it remains fair to say that when a couple goes through the divorce process, a prenuptial agreement can be one of the single most powerful documents that a Wisconsin family court judge can consider. If a valid, written prenuptial agreement provides that certain property belongs to only one spouse, it is likely exempt from Wisconsin’s community property provisions, and cannot be subject to equitable division upon dissolution of the marriage.
How can I make sure a prenuptial agreement is valid?
Above all else, a prenuptial agreement is a contract between two parties, and certain defects in that contract can void the agreement. Some of the hallmarks of a valid (or invalid) prenuptial agreement include:
- Although a couple is allowed to negotiate property agreements during marriage, as well as renegotiating any existing agreement, prenuptial or otherwise, a property agreement made prior to the marriage must contemplate the marriage. A prenuptial agreement only becomes effective once the marriage occurs.
- The agreement must be in writing, and it must be signed by both parties
- The agreement must be fair. Under its terms, one spouse cannot be left with insufficient support following a divorce
- No spouse is ever permitted, in a prenuptial agreement or elsewhere, to waive, limit, or cap child support in violation of Wisconsin state law. The right to receive child support is the right of the child, and not the parent.
- While a prenuptial agreement can establish one spouse’s right to receive alimony from the other spouse following a divorce, as well as containing a property division agreement, a Wisconsin family judge is not required to use the terms of an agreement to decide child custody issues.
Often in a divorce, one spouse will challenge the validity of a prenuptial agreement by providing evidence of the conditions under which the agreement was made. For example, when a spouse can show that he or she signed a prenuptial agreement without knowledge of hidden assets owned by the other spouse, this is valid grounds to void the agreement, as both spouses must fully disclose all assets, debts, expenses and sources of income at the time the agreement was created. Any indication of deception on the part of one spouse against the other spouse voids the agreement. In addition, a prenuptial agreement is void if one spouse manipulated, cajoled, badgered or pressured into signing an agreement against their wishes.
Protect your family and your property today with our skilled Milwaukee divorce attorneys
At MacGillis Wiemer LLC, our hard-working Milwaukee divorce attorneys have more than twenty years of combined experience guiding clients through the often difficult Wisconsin divorce process. Our clients trust us to create legal and financial strategies which enable equitable property settlement agreements or judgments to occur. Whether or not your divorce is amicable, and whether you seek to enforce or nullify a prenuptial agreement, we are ready to fight for the solution you need to move on to the next chapter of your life. Contact us online or call our West Bluemound Road offices today at (414) 727-5150 to find out more.