Wisconsin Prenuptial Agreement
Wedding checklist: venue, invitations, DJ, flowers, cheese curds, New Glarus on tap. Done, done, and done! All you have left to do is draft a prenup. Luckily, that should be the easiest thing on your wedding to-do list. Keep reading to learn about the laws on prenups in Wisconsin.
Wisconsin Prenuptial Agreements
The Wisconsin courts refer to a prenuptial agreement as a “marital property agreement” or “MPA” for short. An antenuptial agreement, prenuptial agreement, and marital property agreement are synonymous. They all mean a legal contract drafted between two parties before getting married. A marital property agreement is only valid after the marriage takes place. The Wisconsin marital property agreement statute and case law outline the rules and requirements for a valid agreement. The terms of a Wisconsin prenup agreement may include restrictions on alimony, property division, retirement accounts, and more. On the other hand, a prenup in Wisconsin cannot limit or contract around child support or child custody or touch on non-financial topics, such as weight gain or in-laws.
What to include in a Wisconsin Prenup
For a Wisconsin marital property agreement to be considered valid, you should consider the following:
- Must be in writing
- Terms must be fair and equitable
- The contract must be signed at a reasonable amount of time before the wedding (not last minute)
- Must be signed by both parties (HelloPrenup recommends initialing each page)
- Full disclosure of assets and income (it is recommended to attach a written statement of assets and income to the prenup)
- It is highly recommended that each party hires their own attorney.
What to exclude from your Wisconsin prenup
To ensure that your prenup comports with Wisconsin law, make sure not to include…
- Terms involving child support
- Terms involving child custody
- Unfair terms (see the Wisconsin test for fairness in the next section)
- Provisions that violate public policy
- Clauses that are not financial in nature, like demanding that one spouse stay a certain weight
The agreement must also be executed voluntarily and freely. This means that the person had a meaningful choice whether to sign the agreement. You can show this by having both parties hire their own attorneys. While having your own attorney is not required, it is certainly recommended.
Statutes & terms to understand for a Wisconsin Prenup
*Before diving into the deep end, let’s go through some terminology and phrases that will be used in your prenup – that way, you don’t go cross-eyed trying to decipher the legal jargon and miss something.
Wisconsin’s prenup test for fairness
Since the 1980s, Wisconsin courts have relied on the “Button” test for fairness. The test arose from a divorce in the 1980s between Mr. and Mrs. Button. This landmark case created the guidelines for prenups in Wisconsin for years to come.
Full disclosure of assets
First, there must be a fair and reasonable disclosure of assets. A written disclosure of all assets and income attached to the prenup should be enough. It is not a hard requirement, but it will help your case. If you can prove your spouse had actual knowledge, that may be enough as well.
Agreement was entered voluntarily and freely
Second, each party must enter the agreement voluntarily and freely. There are four basic ways to know if it was voluntary and freely entered: (1) if each party has their own attorney; (2) if each party has adequate time to review the agreement; (3) if each party understands the prenup; and (4) if each party understand what rights they are giving up.
Terms are fair at the time of signing
Third, the provisions in the prenup must be fair to each spouse at the time of signing the prenup. The factors that the court considers when determining if the terms are fair are as follows:
- Spouses’ objectives when creating the prenup,
- Each spouse’s financial situation,
- Property brought to the marriage by each spouse,
- Each spouse’s family relationship,
- Each spouse’s obligations to other people outside of the marriage,
- Each spouse’s earning capacity,
- Each spouse’s anticipated contribution to the other for education, career, etc.,
- Future needs of either spouse,
- Age, physical, and emotional health of both spouses,
- Each spouse’s contribution to the marriage (income, child care, homemaking, etc.).
Remember, prenups in Wisconsin are presumed to be fair unless proven otherwise. If you want to create a fair prenup, you should make sure all three of these prongs of the Button test are met.
Wisconsin Marital Agreement Statute and Case Law
If you would like to get a prenup in Wisconsin, you must comply with the following:
- The contract must be in writing
- The terms must be fair and equitable at the time of signing and at the time of the divorce
- The contract must be signed at a reasonable amount of time before the wedding (not last minute)
- The contract must be signed by both parties (HelloPrenup recommends initialing each page)
- There must be full disclosure of assets and income (it is recommended to attach a written statement of assets and income to the prenup itself)
- It is highly recommended that each party hires their own attorney
- The contract does not include provisions about child support or custody
Wisconsin Statute Annotated and Wisconsin case law govern prenups in Wisconsin. You can see the statute’s fine print here.
All is fair in love and prenups
Another landmark case in Wisconsin outlines what a “fair” prenup is. In the Gardner case, Wife tried to throw the prenup out because she argued it was unfair and did not voluntarily sign it.
The prenup declared that Husband gets the house, plus all the money he contributes to the joint bank account (it ended up being about $2 million). Husband also presented the prenup to her five days before the wedding. He told her he would not marry her unless she signed the prenup. She spoke with her own attorney and still signed it.
Wife argued that the prenup terms were unfair because the division of property disproportionately favored Husband. Plus, she claimed she did not sign the agreement voluntarily and had no meaningful choice but to sign it because he brought the prenup to her only five days before the wedding.
The court vehemently declared this prenup to be fair and valid. The court stated that just because one spouse gets more money from the prenup does not make it unfair. I repeat: a prenup is not invalid just because one party gets more than the other! The court also stated that Wife was not coerced to sign the contract because she had her own attorney and five days was enough time to decide not to get married. In other words, she had a meaningful choice: sign the prenup and get married or don’t.
Gardner v. Gardner, 190 Wis.2d 216 (1994)
Official term for Divorce in Wisconsin: Divorce
A divorce occurs when two people, who have been legally married, begin the court process to end the marriage. Wisconsin is a “no-fault” state meaning that you can’t argue that your spouse “did something wrong” like adultery or abuse. It’s only one ground for divorce: your marriage is irretrievably broken and cannot be repaired.
How to end a marriage in Wisconsin
There are two ways to end a marriage in Wisconsin: divorce or annulment. You can also file for legal separation. Legal separation does not end the marriage but achieves everything else that a divorce would, such as child custody, child support, spousal maintenance, and property decisions. An annulment ends a marriage that was invalid from the start. For example, one party may have been too young, incapable of consent, or fraudulently induced to get married.
Only one party needs to begin the process of ending a marriage (but don’t get us wrong, it takes two to make it work!) If one party wants to divorce or file for annulment, it is within their sole right to do so, and the other non-participating party does not have to agree in order to begin the process. If a non-participating spouse does not partake in the proceedings, a default judgment will be entered and force the divorce or annulment to proceed.
There is a mandatory “cooling off period” in Wisconsin before the divorce can be finalized. This waiting period is 120 days. In other words, the minimum amount of time that a divorce can take is 120 days (4 months).
Each state has residency requirements that must be fulfilled before you can divorce in that state. In Wisconsin, these are the residency requirements:
- You or your spouse must be a resident of Wisconsin for at least six months, and
- You or your spouse must be a resident of the Wisconsin county you file in for at least 30 days prior to filing for divorce.
Official term for property not considered part of the marital estate
Individual property (sometimes referred to as “separate property”) in Wisconsin by default is property owned before the date of marriage or acquired during the marriage by way of inheritance or gift. Any property acquired during the marriage is subject to 50/50 division at the time of divorce, regardless of who’s name is on the title. If this is not to your liking, you’ll need to specify it clearly in a legal document (such as a prenup or postnup) otherwise.
Maintenance (also commonly known as Alimony)
Official term for Alimony in Wisconsin: Maintenance
In Wisconsin, alimony is known as “maintenance.” Maintenance is not required by law but may be granted if the court deems it necessary. However, the court will respect your prenup if it states that maintenance should be eliminated or limited in some way. You know what that means! If you don’t want to pay maintenance, write it in your prenup.
Okay, so now how can you use HelloPrenup to create your marital property agreement with clauses about maintenance?! Many engaged Wisconsin love birds choose to use the HelloPrenup platform to negotiate and draft their prenup and then choose to seek legal counsel prior to signing.
An important case relating to Wisconsin spousal maintenance
In 1982, the Wisconsin Supreme Court decided a critical case on spousal maintenance (a.k.a. alimony). The court required a husband to pay his ex-wife $25,000 in spousal maintenance for supporting him while he went through medical school. The court explained that when one spouse supports the other spouse through school, the first spouse should be compensated through property division and/or maintenance. The reasoning behind this is that the supporting spouse (the wife in this case) foregoes other opportunities while supporting the other. The supported spouse (the husband in this case) then comes out of that situation with an extremely valuable asset: a degree.
The court reasoned that this particular couple didn’t have many other assets, so the medical degree was actually the most valuable asset that came from the marriage. Further, the court declared that going forward, any spouse may be reimbursed for supporting the other through school via maintenance or property division. Hence, the wife could have received the house instead of maintenance in the amount of $25,000 if that was an option for them (it was not).
What’s the lesson to be learned from this case? You may be able to receive reimbursement for supporting a spouse through their education in the form of spousal maintenance or property division.
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