Prenuptial, or Premarital, Agreements are legally binding contracts entered into by couples before they get married to each other. They are also called Marital Reclassification Agreements. The purpose of a Prenuptial Agreement is to opt out of marital property laws in whole or in part. Most prenuptial agreements establish the financial rights of each spouse in the event of a death or divorce. It is important to note, however, that unless a Prenuptial Agreement specifically discusses what happens in the event of a divorce, it does not necessary apply in a divorce. If all requirements are met, however, prenuptial agreements are generally found to be valid in Wisconsin.
Some common circumstances where prenuptial agreements are entered into are when one spouse is significantly wealthier than the other spouse, when a spouse has children from a different marriage or relationship, when one spouse has a family business he/she wishes to protect from the other spouse in the event of divorce, or when one spouse has significant debt that the other spouse does not want to be responsible for in the event of divorce.
Pursuant to statute, Wisconsin law presumes that all assets shall be divided equally in the event of a divorce. However, a Prenuptial Agreement could overcome that presumption if it specifically addresses what happens in the event of a divorce and if the court determines that it is a valid Prenuptial Agreement that will be upheld in a divorce. Additionally, it is important to know that parts of a Prenuptial Agreement may be upheld by the court, while other parts may not be. The court has the discretion to uphold all, none or only parts of the Prenuptial Agreement.
When deciding whether to uphold a Prenuptial Agreement, the court must insure that certain requirements and standards are met in order for all or part of a Prenuptial Agreement to be enforced and upheld at the time of the divorce. Some of the factors that the court looks at to determine whether a Prenuptial Agreement should apply in a divorce are whether or not the agreements were fair at the time of the signing of the Agreement (i.e. did the parties knowingly and voluntarily enter into the agreement?), whether there was a complete financial disclosure by both parties, whether both parties had adequate legal representation and whether or not a Prenuptial Agreement is fair at the time of the divorce (i.e. has their been a substantial and unforeseeable change in circumstances?).
An example of a situation that may be scrutinized for lack of fairness at the time of entering the agreement is the following: When the husband-to-be is insisting on a Prenuptial Agreement and only presents it to the bride-to-be on the eve of the wedding day (guests have already come to town, non-refundable deposits have been paid). In that circumstance, the bride-to-be may sign the Agreement without sufficiently reviewing the Agreement, without fully understanding the Agreement and her rights under the Agreement and without fully grasping what she is giving up in the future. In the case, the court may decide not to apply a Prenuptial Agreement in a divorce.
If you have questions about a Prenuptial Agreement in a divorce, please call our office at 414-258-1644 to schedule a free half-hour consultation with an attorney.
8 thoughts on “Prenuptial Agreements in a Divorce in Wisconsin”
I have a prep nup. My husband is fighting in a divorce. He has had 3 surgeries to hi right rotator cuff. He says he is disabled. I have seen stuff he has worked on and physically seen him work on stuff. I’m not denying he has pain. I just recently had rotator cuff surgery which was a work injury. I don’t feel it is fair because I have a job that I have a pension. I have been at my job for
26.5 yrs. I was married before for for 17 years & children. We owned a home. We came to an understanding.
Thank you for your interest in our blog. I’m not exactly sure what your question is but in order to fully evaluate your case, we would need much more information. If you live in Milwaukee, Waukesha, Washington or Ozaukee counties, we would be happy to offer you a free initial consultation to discuss all of the facts of your case and provide you with more specific direction or information. Please call our office at 414-258-1644 to schedule an appointment. If you live outside of those counties, I would encourage you to consult with an experienced divorce attorney in your area. Good luck!
i had a prenup when my husband marry me. I dont have any idea what is that about so i just sign it. 12 years after our marriage hes divorcing me. Im afraid his taking our minor child away from me and dont give me anything on me. He let me sign it 2 days before our wedding. Its not notarize in wisconsin but it was notarized in philippines. But hes not divorcing me in philippines but in here in wisconsin. Back on 2010 we supposed to get divorced and he brought that prenup to the judge but still have to pay me 120K but we reconcile and stays married untill he got retired at age 64 tlast january and shock me with devorce again. Anything i can do?
Yes! Hire an experienced divorce attorney immediately. It sounds as if your husband is trying to take advantage of you and the circumstances surrounding the pre-nuptial agreement sound highly suspicious. These are the types of factors that the courts look at and often find that the agreement is no longer fair. Good luck.
is there a statute of limitation on prenups.. married for 37 years…
Prenuptial agreements and how they apply to a divorce is a very complicated legal issue. There are several factors which the court must consider but one of them is whether circumstances have changed so significantly as to render the agreement unfair. After 37 years, this is highly likely. You should consult with an experienced divorce attorney who can review the pre-nuptial agreement and your current circumstances to give you advice as to whether he or she believes the pre-nupital agreement would be upheld in a divorce.
what form do i use to nullify a prenuptial agreement in WI? i am the one that had it created before we got married. i want to void it and my husband agrees with me.
There are serious consequences one way or the other for that so I strongly advise you to consult with an attorney about this decision.