Issues in Wisconsin Pre-Nuptial Agreements

Because of rules specific to this state, Wisconsin pre-nuptial agreements must address certain important issues.  Otherwise, even if the agreement is validated at divorce, it may not fully protect the assets as intended.

First of all, the pre-nup agreement must clearly state that it is enforceable at divorce.   Although it may seem obvious, some courts have refused to enforce a pre-nup that lacked a clear statement of this nature.   Be certain that, when focusing on the details, your drafter does not forget this basic point.

Second, the pre-nup must clarify the exact property/income intended to be separate property.   A pre-nup can cover as much or as little property as you wish, but property that is not clearly labeled as separate will almost certainly be divided at divorce.

Third, you must consider not only the property that exists at the date of marriage, but whether increase in value of that property will also remain separate.  Increase in value can be either active or passive.  Active appreciation results from the owner of the asset taking some action to increase the value (such as home improvement).  Passive appreciation results from increase due to interest or stock value, not directed by the owner.  A careful pre-nup will clarify whether the increase in value of a separate asset remains separate.

Fourth, your pre-nuptial agreement should address whether you intend to have children, whether each party is in good health, whether a party intends to return to school, etc.   Judges can invalidate a pre-nup if the couple’s circumstances substantially and unexpectedly change.   If the above potential life events are addressed in the pre-nup, it is more likely that it will be upheld.

There are many more issues to consider when drafting a Wisconsin pre-nuptial agreement.   Careful drafting requires looking at your current circumstances, but also well into your future.   The attorneys at Kowalski Family Law will take the time to consider all options to give you the product you deserve–a clear and enforceable pre-nuptial agreement.

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About the Author: David Kowalski

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