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Prenuptial Agreements: A Comprehensive Guide for All Couples

Learn everything you need to know about prenuptial agreements, how they protect your assets, and why they're valuable for couples with children, young couples, blended families, and those with significant assets.

Introduction

A prenuptial agreement (commonly called a 'prenup') is a legal contract created by two people before they marry that typically outlines how assets and debts will be divided in the event of divorce or death. While often associated with wealthy individuals protecting their fortunes, prenups serve many practical purposes for couples across various life situations. This document can help clarify financial rights and responsibilities, protect family businesses, shield one spouse from the other's debts, and establish clear guidelines for property division. Whether you're entering marriage with children from previous relationships, significant assets, or simply want clarity about your financial future together, understanding prenuptial agreements is an important step in building a secure foundation for your marriage.

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Key Things to Know

  1. 1

    Prenuptial agreements must be executed well before the wedding (at least 30 days is recommended) to avoid claims of coercion or duress.

  2. 2

    Both parties must provide complete and honest financial disclosure for the agreement to be valid.

  3. 3

    Each person should have their own independent legal counsel review the agreement before signing.

  4. 4

    Prenups cannot determine child custody or child support amounts, as these must be decided based on the best interests of the child at the time of divorce.

  5. 5

    The agreement should be reviewed and potentially updated after major life events such as the birth of children, significant inheritance, or substantial changes in financial circumstances.

  6. 6

    State laws vary regarding prenuptial agreements, so it's essential to work with an attorney familiar with the laws in your jurisdiction.

  7. 7

    A well-crafted prenup promotes financial transparency and communication, which can strengthen your relationship rather than undermine it.

  8. 8

    For blended families, a prenuptial agreement should work in conjunction with your estate plan to ensure children from previous relationships are protected.

Key decisions before you file

Before you file a Prenuptial Agreement in Wisconsin, a few decisions shape the document: which option to choose and what each one means. The Prenuptial Agreement guide walks through them.

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Wisconsin Requirements for Prenuptial Agreement

  • Voluntary Execution (Wisconsin Statute § 766.58)

    The agreement must be entered into voluntarily by both parties without coercion, duress, or undue influence. Wisconsin courts closely examine whether both parties freely consented to the terms.

  • Full Financial Disclosure (Wisconsin Statute § 766.58(6)(c))

    Both parties must provide complete and accurate disclosure of all assets, liabilities, and income. Failure to disclose material financial information may render the agreement unenforceable.

  • Opportunity for Independent Legal Counsel (Wisconsin Statute § 766.58)

    Each party should have reasonable opportunity to consult with independent legal counsel before signing. While not absolutely required, absence of independent representation may be a factor in determining enforceability.

  • Unconscionability Prohibition (Wisconsin Statute § 766.58(6)(b))

    The agreement must not be unconscionable when executed or when enforcement is sought. Courts may refuse to enforce provisions that are grossly unfair or one-sided.

  • Marital Property Classification (Wisconsin Statute § 766.58(3))

    The agreement must clearly identify how Wisconsin's marital property law will apply to the couple's assets, including classification of property as individual or marital.

  • Child Support Limitations (Wisconsin Statute § 767.511)

    Provisions attempting to waive or restrict child support obligations are unenforceable as contrary to public policy. Child support remains the right of the child, not the parents.

  • Execution Requirements (Wisconsin Statute § 766.58(1))

    The agreement must be in writing and signed by both parties to be enforceable. Oral prenuptial agreements are not valid in Wisconsin.

  • Spousal Support Provisions (Wisconsin Statute § 766.58(9))

    The agreement may include provisions regarding spousal maintenance (alimony), but courts may review these provisions for fairness at the time of enforcement.

  • Property Division Upon Death (Wisconsin Statute § 766.58(3)(c))

    The agreement may govern property division upon death, but must not conflict with Wisconsin probate law or interfere with statutory protections for surviving spouses.

  • Modification and Revocation (Wisconsin Statute § 766.58(4))

    The agreement should specify procedures for modification or revocation. Under Wisconsin law, modifications must be in writing and signed by both parties.

  • Sunset Provisions (Wisconsin Statute § 766.58)

    The agreement may include sunset provisions that specify when certain terms expire or the entire agreement terminates (e.g., after a certain number of years of marriage).

  • Choice of Law (Wisconsin Statute § 766.58(1))

    The agreement should specify which state's laws govern its interpretation and enforcement, particularly important if the couple may relocate from Wisconsin.

  • Marital Property Act Compliance (Wisconsin Statute § 766.01-766.97)

    The agreement must comply with Wisconsin's Marital Property Act, which establishes the framework for property ownership between spouses in Wisconsin.

  • Uniform Premarital Agreement Act Considerations (Uniform Premarital Agreement Act)

    While Wisconsin has not adopted the Uniform Premarital Agreement Act, awareness of its standards is important for agreements that may be enforced in other states.

  • Retirement Benefits (29 U.S.C. § 1055 (Employee Retirement Income Security Act))

    Provisions affecting qualified retirement plans must comply with federal ERISA requirements, including proper waiver procedures for spousal benefits.

  • Tax Considerations (26 U.S.C. § 1041 (Internal Revenue Code))

    The agreement should address tax implications of property transfers and support payments, complying with Internal Revenue Code provisions affecting married couples.

  • Domestic Violence Protections (Wisconsin Statute § 813.12)

    Provisions that could promote or incentivize domestic violence or penalize reporting of domestic violence are contrary to public policy and unenforceable.

  • Estate Planning Integration (Wisconsin Statute § 861.02)

    The agreement should coordinate with estate planning documents and comply with Wisconsin's elective share and inheritance laws.

  • Business Interest Protection (Wisconsin Statute § 178.0901-178.0908)

    Provisions protecting business interests must comply with Wisconsin business entity laws and properly address valuation methods and buyout procedures.

  • Severability (Wisconsin common law principles of contract interpretation)

    The agreement should include a severability clause stating that if any provision is found unenforceable, the remainder of the agreement remains valid and enforceable.

Frequently Asked Questions

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