If you are getting married, it is important to speak to a Appleton prenuptial agreement attorney who can ensure that yours is enforceable.
What is a Prenuptial Agreement?
Under the law in Wisconsin, when two people get a divorce, their marital property is divided 50/50. This is because Wisconsin is one of the few states that is considered a community property state. With a prenuptial agreement, couples can break from this model and determine how they would like to divide marital property in the event of divorce. As long as the agreement is fair and both parties entered into it willingly, a judge will approve it and the agreement will stand.
Who Needs a Prenuptial Agreement?
Anyone who is getting married and wants to protect their financial future should get a prenuptial agreement before they get married. However, a prenuptial agreement becomes even more important when any one of the following applies:
- Either party has a substantial amount of premarital assets
- Either party is a business owner, particularly if it is a family business
- Either party has a significant amount of debt
- It is a second or subsequent marriage for either party
- Either party has children from another relationship
Including Child Support and Child Custody in a Prenuptial Agreement
Prenuptial agreements are mainly used to divide property in the event of divorce. If parents include child custody and child support provisions within their agreement, it is unlikely that the court would enforce them. If a couple with children gets divorced, the courts will make child custody decisions based on what is in the best interests of the child. No one can determine what is in a child’s best interests until they are faced with the situation and so, child custody cannot be included in a prenup.
Child support issues also cannot be addressed in a prenuptial agreement. This is because child support is thought of as the child’s property, not the parent’s. As such, it cannot be included in a prenup the same way other property belonging to one party can.
How to Get a Prenuptial Agreement
Prenuptial agreements must be drafted before a couple gets married. The couple must have the intention to marry, and know the date of the wedding. When drafting a prenup, the two parties should create a list of the property they would like included in the prenup. Some of the most common provisions included in a prenup are as follows:
- The rights of each party to the property gained during or prior to the marriage
- The control and management of the property
- A trust, will, or other arrangement to carry out the prenup
- The distribution of property after a major event, such as a death
- The authority for a surviving spouse to distribute the other party’s property in the event that they pass away
- The party who will receive alimony, as long as the parties involved have the financial means to pay it
- How to deal with disputes regarding the prenup
Once the parties have determined what property they would like rights to, they can then draft their prenuptial agreement. When drafting a prenup, it is not required that you work with a Appleton prenuptial agreement attorney. However, speaking to a lawyer who can draft your agreement is important. A lawyer will ensure your agreement is enforceable and that it fully protects your rights now, and in the future.
Enforcing a Prenuptial Agreement
The landmark case Button v. Button set forth the testing measures to determine if a prenup is fair. In the case of a dispute or question surrounding a prenup, the court will look at many factors. The first is whether the agreement was signed voluntarily. The court will determine that a prenup was signed voluntarily if:
- Both parties were represented by legal counsel
- Both parties had a sufficient amount of time to read the agreement
- Both parties understand the terms outlined in the prenup
- Both parties understood the rights they were forfeiting
Each party entering into a prenup must also provide full disclosure about their finances. A comprehensive list of the assets and debts each party currently owns, as well as the value of the property, is enough to provide this proof.
When determining whether a prenup is fair, the court will consider many different factors. These include:
- The financial situation of each party
- The property each spouse brought into the marriage with them
- Any financial obligations a person has to people other than their spouse, such as a child from a previous relationship
- The earning capacity of each party
- The age of each party
- The physical and mental health of each party
- The contribution each party made or will make to maintaining the household and raising the children
Any time there is a dispute involving a prenuptial agreement, it is important to speak to a lawyer. You will likely have to attend a court hearing and an attorney can build a strong case for you to give you the best chance of a successful outcome.