Wisconsin is a community property state, meaning that, upon marriage, each spouse has an interest in one-half of the marital property. This rule is automatic. If the spouses want a different arrangement, they must sign a formal marital property agreement to opt out of the default rule. These agreements must meet several requirements:
- They must be written.
- The spouses must make full financial disclosures.
- The spouses must enter the agreement freely, not coerced or forced.
- They cannot be shockingly unfair.
It is not required that each spouse has his/her own lawyer, or that the agreement is signed far in advance of marriage. It is not even required that the agreement is fair to each spouse. However, if the agreement is challenged at divorce, each of these issues can be a basis the invalidate the agreement, if the problem is serious enough. Therefore, if at all possible, the best practice is to encourage each spouse to use a lawyer, exchange the agreement well before the wedding, and ensure some level of asset sharing.
Keep in mind that the same lawyer, in our view, cannot represent both spouses. It is a conflict of interest because each spouse has different options and needs different legal advice. Therefore, each spouse must be free to receive unlimited legal advice from his/her own lawyer.
There is no point in signing a pre-nup that is not carefully drafted to comply with requirements for enforcement. We have successfully represented several clients, both to enforce and overturn marital property agreements, and we will ensure that you have the best representation possible. We can also assist you to draft a comprehensive, enforceable marital property agreement.