What Should My Fiancée and I Include in Our Prenup?

 Posted on May 18, 2018 in Family Law

If you are planning to get married, you are likely looking forward to a future of happiness and partnership with your spouse. However, you may also wish to make sure you are protected should your marriage ever come to an end. A prenuptial agreement can be beneficial, especially if you or your fiancée earn a high income or own a business or if one of you has children from a previous relationship. This type of agreement can provide peace of mind that your financial interests will be protected, and it can help you avoid conflict if you decide to get a divorce.

What Can Be Included in a Prenup

Under Wisconsin law, a prenuptial agreement is also known as a marital property agreement and can include the following:

• A definition of each spouse’s rights and obligations regarding property owned by either party, including who will manage and/or control this property, no matter when the property was acquired or where it is located.

• Decisions about the disposition of property — how property owned by either or both spouses will be divided – during divorce, upon the death of a spouse, or when any other event occurs.

• A modification to the spousal support (alimony) that a spouse would be eligible to receive following divorce, or the elimination of this support altogether.

• The creation of a will, trust, or other legal agreement to carry out the terms of the prenuptial agreement.

• A provision that allows property owned by either or both spouses to be passed to a beneficiary after either spouse’s death without the need for probate.

• A “choice of law” regarding the jurisdiction in which the agreement will be interpreted (i.e., under the laws of Wisconsin or another state).

• An agreement to use arbitration to resolve any disputes that arise regarding the interpretation of the prenup.

• Any other agreements between spouses that do not violate laws or public policy in Wisconsin. 

What Cannot be Included in a Prenup

Prenuptial agreements cannot include binding decisions about how custody of children will be divided between parents or the amount of child support that either parent will be obligated to pay upon separation or divorce. Decisions about these matters are made in family court with a judge taking the children’s best interests into consideration and ensuring that children’s rights are protected and that they have the financial support to meet their needs. However, a couple may decide to include terms in their prenuptial agreement regarding child custody and/or child support, but these decisions will function as an informal agreement that will not be enforceable in court.

Spouses should also be aware that decisions made in a prenuptial agreement regarding the modification or elimination of spousal maintenance may not be enforceable if they would result in a spouse being placed in a position of financial hardship. These types of situations include those in which a spousal support agreement would make a spouse eligible for public assistance in which case the other spouse may be required to provide support that would avoid the need for this assistance, regardless of the terms of the couple’s prenup.

Contact a Milwaukee, WI Family Law Attorney

If you and your fiancée want to ensure that your rights and your financial interests will be protected after your marriage, the attorneys of Gimbel, Reilly, Guerin & Brown, LLP can help you draft a prenup that meets your needs. Contact our Milwaukee prenuptial agreement lawyers at 414-271-1440 to schedule a consultation.

Sources:

https://docs.legis.wisconsin.gov/statutes/statutes/766/58

https://www.wisbar.org/NewsPublications/WisconsinLawyer/Pages/Article.aspx?Volume=72&Issue=7&ArticleID=19773