Prenuptial
Agreements
Axley Can Help.
On average, couples today are older and further into their careers before entering marriage. It is not uncommon for one or both spouses to have children from prior relationships. The unfortunate reality is that many marriages fail.
Unless couples take specific measures preemptively to determine the disposition of income and property upon death or divorce, they may not be able to preserve separate legacies for these children. Discussing and negotiating a prenuptial agreement may not be romantic or comfortable. However, the couple will face much less stress and expense when addressing these issues early rather than waiting until the relationship has already ended. Axley attorneys educate clients about the different options and can help couples successfully navigate this delicate conversation.
What is a Prenup?
A prenuptial agreement (“prenup”) is a contract between two people before they get married that does not take effect until the wedding day. It is used to deviate from Wisconsin’s marital property laws that would otherwise apply to a married couple.
Prenups create financial rules for three stages of life: during the marriage; upon the death of either spouse; and upon divorce. Prenups reclassify income, expenses, assets and debts as the individual property or the marital property of each spouse. Prenups can be as comprehensive or as narrow as the couple needs. For example, a prenup can be very limited and only reclassify one asset or apply to only one stage of life. Alternatively, a prenup can address every single dollar that either person owns, now or in the future. Each prenup is drafted and tailored specifically to that couple.
What Happens Without a Prenup?
Wisconsin is one of nine states in the country that is a marital property (or community property) state. If a couple gets divorced in Wisconsin without a prenup, all income, assets, and debts owned by either spouse at the time of divorce are going to be divided between the spouses somehow, with the exception of gifts or inheritances. The starting point is an equal division and the spouse desiring an unequal division has the burden of convincing the court of the reasons why. An equal division is assumed regardless of how the item is titled, regardless of which spouse acquired it, and regardless of whether it was owned by either spouse prior to the marriage. The only exceptions to this rule are items that are received through gift or inheritance, which are not typically divided with the non-owning spouse. Similarly, if one spouse dies without a prenup, then the surviving spouse may have a right to inherit some or all of the income, assets, and debts acquired before or during the marriage, even if they were acquired in the name of the deceased spouse alone. These are general statements that may not apply in all situations, so consult with an attorney if you have questions about your particular situation.
Our Attorneys
Partner • Madison
Partner • Madison
Kathryn has been tremendously helpful in guiding me through a very complicated paternity process. She takes a balanced approach, knowing when to be aggressive and when to step back. I also appreciate that she is efficient with her communications which keeps costs down. Hopefully they won’t have to use her, but if so, I wouldn’t hesitate to recommend her to friends and family.
Elizabeth was everything we could have asked for and more for a lawyer. She was professional and efficient and always got back to us in a timely manner. We cannot thank her enough for everything she did for our family. We would/will 100% recommend her to anyone needing a family lawyer.
Is it too late to get a prenup if I’m already married?
While it is too late to get a prenup after the wedding date, a married couple can instead enter into a postnuptial agreement (“postnup”). A postnup does all the same things as a prenup. The primary difference is that the couple is already married when they sign it and when it takes effect. For that reason, it may be harder to convince your spouse to sign a postnup, and to give up marital property rights that your spouse already enjoys.
Can my partner force me to sign a prenup if I don’t want one?
No one can be forced, threatened, or tricked into signing a prenup. A prenup will not be legally enforceable if someone was under duress or fooled into signing it. Each person should be represented by a separate attorney, or at least have the opportunity to review the prenup with an independent attorney prior to signing. Additionally, financial information must be exchanged ahead of time, so that each person knows what financial rights he or she may be giving up by signing the prenup.
How much does a prenup cost?
The cost of a prenup will vary, depending on its complexity and the extent of the negotiations and bargaining required between the two future spouses.