I have many clients and friends that share many misconceptions and opinions about Wisconsin Marital Property Law and marital property agreements (prenups), so I thought I would assist in clarifying the law and what marital property agreements can ultimately accomplish.

So, what is martial property?  In Wisconsin, martial property is “all income and possessions a couple acquire after their “determination date” (with certain exceptions). The determination date is the latest of: the couple’s marriage day; the date when they both took up residence in Wisconsin; or Jan. 1, 1986”.  Marital property generally includes all income and property acquired during the marriage by either spouse. Specifically, this usually includes salaries and bonuses deposited in bank and brokerage accounts, real estate, business income, and benefits accrued in 401(k), IRA, and pension plans. In a divorce, martial property is what gets divvied up.   The presumption under Wis. Stat. § 767.61 is that all marital property shall be divided equally between the parties. The method for dividing marital property depends on where you’re getting divorced. If it’s in one of the nation’s nine “community property” states — including California, Texas, Arizona, and Wisconsin — it’s usually split fifty-fifty.

By contrast, separate property are assets owned by each spouse prior to the marriage, as well as some inheritances received during the marriage. In a divorce, you typically get to keep the original value of your separate property, but in many states, including Wisconsin, you must share any appreciation with your spouse.

So, what is a marital property agreement (prenup) and what can they do?  A prenuptial agreement is a contract made between individuals who intend to marry, and it goes into effect and is enforceable only if the couple actually marries. The agreement must be in writing and signed by each future spouse. The primary goal of entering into a prenuptial agreement is to protect the individual assets of each person in the event that the marriage fails or, in some instances, if one party dies, but there are many other reasons to create and sign this document. The benefits are not reserved for the wealthy, as tradition may lead one to believe. For example, a prospective spouse may have a business or personal property that he or she wishes to ensure will remain in the family. Similarly, prenuptial agreements can be used to protect future gifts or inheritances of the spouse or the inheritance rights of heirs from a statutory spousal interest, although they are not an adequate substitute for a will. When debts are included in the agreement, it is possible to require that monies owed to creditors by one individual remain the sole responsibility of that spouse, protecting the credit of the spouse who is more financially stable. If assets are the focus of a prenuptial agreement, the equitable distribution of property at the time of divorce can be simplified, saving time and attorney’s fees and avoiding drawn-out divorce litigation. Moreover, the issue of alimony/spousal maintenance can be agreed upon beforehand. However, prenuptial agreements are not a way to resolve child custody or child support matters, and jointly-acquired assets and debts of the marriage must still be divided fairly.

Wisconsin law presumes that marital property agreements in general are enforceable, and the burden to show unenforceability is on the party challenging the agreement.  Gardner v. Gardner, 190 Wis. 2d 216, 229-30 (Ct. App. 1994).  However, Wisconsin is a “two looks” jurisdiction.  Wis. Stat. 766.58(6)(a) requires a determination when the agreement is made.  I.e. is the agreement conscionable through the parties’ separate attorney representation, proper disclosure of property, and adequate time to review the agreement. Then, Wis. Stat. 767.61(3)(L) requires a determination of whether the agreement is or has become inequitable at the time of divorce.  Furthermore, the maintenance or spousal support statute provides that a marital property agreement is but one factor in a list of factors for the court to consider.  So, the martial property agreement is merely advisory to the divorce court rather than conclusive in maintenance determinations.

So, if I am not rich or I trust my future spouse, are prenuptial agreements necessary?  In short, yes.  Although prenuptial agreements are often thought to be about wealth, a prenup can also protect someone against a spouse who is entering a marriage with a lot of debt.  In the prenup, the debt can be defined and the ultimate responsibility for this debt can be clearly outlined.  Moreover, although the perspective of a prenup is that a partner doesn’t have a high level of trust, the opposite is often true because all assets must be disclosed in order for an agreement to be valid.  This full disclosure works to create transparency in the relationship and can often lead to both parties playing a larger role in financial matters. Marriage, like forming a business, is a shared financial undertaking and a prenup is the operating agreement that helps to define expectations.  Contrary to popular belief, prenups actually help to equal the playing field, bring another level of partnership to the relationship, and ultimately shore it up on all fronts to protect against the “what-ifs” that can occur in life. In fact, if a prenuptial agreement places a spouse into a worse position after the marriage than before it, there is a good chance that the court won’t uphold it.

Some thoughts on prenuptial agreements:

Marriage is a romantic and stabilizing institution. Close to half of marriages last until the death of one of the spouses. This is a high and reasonable percentage given the intense lifetime commitment. Thankfully, we are no longer operating in the context of an older ethos, when divorce-related stigma made it nearly impossible for unhappy spouses to escape unhappy marriages. The decision to divorce is difficult, painful, and personal. It is essential to make the process easier for spouses who choose to go this route. Prenups help facilitate this as they motivate important conversations before marriage, order expectations during marriage, and define an escape valve if one is needed. In short, prenups can promote happy marriages.  In fact, it is said that only 5% of divorces that occur in the United States have a prenuptial agreement in place that help to dictate the proceedings. Thus, although prenups may not sound romantic, one can argue that they keep the romance alive.

For more information about Marital Property Agreements please contact me at 414-491-3283 or at David.watson@watsonatlaw.com.