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Do We Need a Prenuptial Agreement?

Your wedding is one of the most important days of your life. You envision your marriage will be perfect without any bumps in the road. For many, the thought of a prenuptial agreement brings a sharp halt to these idyllic dreams. A prenuptial agreement is a contract between married partners that provides provisions for settlement in case of a divorce. Although you may think that prenuptial agreements are only for wealthy celebrities, they can be helpful in guiding any couple through a more amicable divorce, should that ever occur.

What Issues are Covered in a Prenuptial Agreement?

There are many issues that should be included in a prenuptial agreement. Financial concerns are the most important consideration in prenuptial agreements. In Wisconsin any property and assets that you accumulated during the marriage are considered marital property. Property may be classified as marital, individual, or mixed. A prenuptial agreement will provide couples with specific details for how they will divide and distribute property and assets in a divorce. It also provides for how to handle debts.

You can create a prenuptial agreement that specifically addresses the issues that are most important. Some of these issues may include:

  • The rights and obligations of each party in regards to the other person’s property
  • The distribution of each party’s property
  • Management and control of property
  • Spousal support and maintenance
  • Provisions following the death of either spouse
  • Agreement for how to arbitrate disputes
  • Any other issues that affect property

It is important to note that child custody and support are not part of prenuptial agreements. These issues that specifically impact children cannot be decided in advance.

Is a Prenuptial Enforceable?

If you go through the trouble of establishing a prenuptial agreement, you want to make sure that it will be enforceable. It is generally much better to have your prenuptial agreement crafted and executed by a reputable attorney than to try to use a template or standardized form. To make sure that a prenuptial agreement is enforceable, it must follow the standardized guidelines provided in the Uniform Premarital Agreement Act (UPAA). The UPAA, drafted by the Uniform Law Commission, is considered model law that was created to include all the essential elements that make it enforceable in court.

In Wisconsin, a prenuptial agreement is enforceable only when several key elements are met. These include:

  • The premarital agreement must be in writing and signed by both parties.
  • The agreement must have been created in contemplation of marriage.
  • The agreement does not need to have supporting consideration. In other words, neither party has to provide something of value in order for the agreement to be valid.

A prenuptial agreement may be unenforceable if only one party signed the document, if the agreement is grossly unfair to one party, or if either party did not provide full disclosure about their assets and debts prior to signing the document.

Changes can be made to prenuptial agreements if both parties are in agreement. In that case, a new document must be drafted and signed that will replace the existing agreement. A prenuptial that is created during the marriage is called a postnuptial agreement.

If you are planning your marriage you want to make sure that you protect your interests. Contact our experienced legal team to draft and execute an enforceable prenuptial agreement.

Published April 23, 2019
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