Wisconsin Prenuptial Agreement Attorneys

Things you should consider when making a Prenuptial Agreement

There are many things to consider when creating a prenuptial agreement. Not everyone needs a prenuptial agreement, especially if the engaged, pre-marriage couple owns relatively similar assets of equal values with typical careers, incomes, and respective family structures. Instead, prenuptial agreements are for pre-married people who are especially attached to their property for various reasons, such as its high monetary value, emotional attachment, family inheritance status, or other unique nature. Due to the importance of the person retaining ownership over such property, he or she may want to create a prenuptial agreement to protect what will happen to the property in the event of an unexpected future divorce or death. Without a prenuptial agreement, the person risks losing his or her important property, or at least a significant portion of it, possibly with other serious connected repercussions, to the divorcing spouse. Prenuptial agreements can also be combined with good estate planning, to control where important property is distributed upon death, so that it does not wind up being given to undesirable people, such as estranged family members or unfavorable in-law relatives of a spouse’s family.

1. Classify Individual vs. Marital Property 

   A Prenuptial Agreement’s primary purpose is to determine what property and assets you will classify as your “individual” property upon an unfortunate and unplanned future divorce. Property classified as your “individual” property will be awarded to you in a divorce, rather than your spouse. All other property will likely be classified as “community marital property” under Wisconsin law and therefore will be split equally (50/50) between you and your divorcing spouse. While no one wants to think about the possibility of a divorce, if you own property that is especially important to you, or that you worked very hard for personally, such as a family inheritance, retirement or savings account, or a successful business – it is wise to make sure such property always remains yours. It must therefore be classified as your “individual” property to keep it beyond the divorce process. 

2. Two (2) Independent Attorneys 

   Prenuptial agreements are often challenged in divorces. To minimize this risk, each fiancé should have their own independent attorney draft or review the document. This ensures both parties fully understand the agreement and reduces the likelihood of future claims of confusion or unfair pressure. Having separate legal representation significantly strengthens the prenup's validity, making it harder to nullify in court during a potential divorce. Failure to secure two (2) independent attorneys to represent the couple’s respective interests in the creation process is a classic and easy way for the prenuptial agreement to be challenged and nullified later by a skilled opposing lawyer in a future divorce court.

3. Financial Disclosure Statements 

   Another requirement to strengthen a prenuptial agreement so that it survives any future challenge in divorce court is for each fiancé to create accurate and transparent financial disclosure statements. These statements get attached to the final signed prenuptial agreement and disclose each fiance’s assets and liabilities to the other. This is important so that you and your future spouse are aware of each other’s financial circumstances and dynamics when entering marriage, ultimately so that you both understand the agreement you are signing and the promises it contains. Couples should be honest and open when filling out financial disclosure statements, as lying about or inaccurately identifying property values and debts can cause the prenuptial agreement to be held invalid or struck down by a divorce judge someday. 

4. Prepare Professionally 

   Do not try to create your own prenuptial agreement at home, such as by purchasing a generic version online or attempting to draft it amateurly. Some of what gives a premarital agreement legal strength is its formalities in execution, such as by each spouse having their own attorney review it and attaching accurate financial disclosure statements. While other contracts, such as a vehicle purchase agreement or residential lease, can often be safely executed without involving lawyers, prenuptial agreements are completely different. Courts and judges are more comfortable with the default 50/50 divorce distribution rule of a couple’s entire community marital property portfolio and strict adherence to intestate inheritance rules after death. Because of this bias towards the default rules, prenuptial agreements have a history of being successfully overturned and challenged by good divorce attorneys, especially if the agreement is not created properly. Trying to draft the document yourself is an easy target for your opposing, divorcing spouse’s lawyer to exploit someday, making the agreement entirely or partially unenforceable.  

5. Don’t Co-Mingle Individual Property 

   Do not co-mingle property you intend to keep as an individual in a divorce, before or after signing a prenuptial agreement. Co-mingling property can open your prenup to legal challenges. Keep individual property titled only in your name. For community marital property, it's okay to have your spouse's name on assets or engage in joint actions. Consult your attorney for unique assets or special circumstances. Co-mingling creates arguments that the couple changed intentions from the original prenup, raising questions of intent or waiver of rights. The length of co-mingling can be relevant, as courts may hesitate to separate long-shared property in divorce. While a prenup helps, avoid co-mingling individual property to prevent potential arguments. 

6. Payment Consideration 

   It’s often advisable for the wealthier partner to make a cash payment to the less wealthy partner when signing the prenuptial agreement. This creates an additional basis to strengthen the document and protect it from challenges in divorce court, by showing that real financial value was paid as “consideration” for the contract. Consideration is the real, bargained-for exchange of promises and property, and is a core requirement for any contract to be legally valid and enforceable. The promise to get married itself is generally seen as a weak basis for contractual consideration in the modern world. By making a real cash payment to the less wealthy spouse upon signing the prenuptial agreement, this problem can be somewhat avoided by bringing in cash or other property to be exchanged – which is respected more for contractual consideration. The parties could also agree to a significant distribution upon the future divorce, but it is still wise to consider making a current payment, especially if the spouses have vastly different financial statuses. 

7. Talk It Over Before Hiring Attorneys

   Having an honest and positive conversation with your fiancé about your goals in creating a prenuptial agreement before contacting lawyers is wise. Prenuptial agreements can be uncomfortable to talk about, and pulling lawyers into the discussion too early may create unnecessary tension and mistrust between you and your fiancé. This could cause you to wind up never creating a prenuptial agreement at all, or worse, harm your relationship. Therefore, come to a verbal understanding at home with your fiancé about the most important aspects of your goals and desires for the prenuptial agreement. Only afterward should you contact independent attorneys to explain your verbal agreement from home to them. By engaging in the prenuptial agreement creation process privately in this order, you will raise the chance that your fiancé signs the document with less emotional effects on your relationship. You don’t want your fiancé to be surprised or shocked by the prenuptial agreement, and an unfamiliar lawyer can make this experience even more intense, potentially causing a failure of the venture.