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Heather Jones

So you’ve met the one, and it is time to get married. You’re excited and happy and dreaming about a romantic future until your partner says something along the lines of, “we need to discuss the prenup.” It can come across like a wave of ice water to the face. A lot of people who are preparing for marriage end up having this conversation. Of course, when you first hear of it or bring it up to your partner, it can be easy to misinterpret the reasoning behind it. After all, why should you talk about divorce before you get married if you don’t intend to see the marriage all the way through to the end? There are many good reasons for having a prenup, even if one or both of you don’t make a lot of money right now or own a lot of property. No one wants to hear this, but 50% of marriages end in divorce, and you should consider protecting your finances. A prenup can be a great idea to explore with an experienced Wisconsin family law attorney to advise you. Read on to learn more about Wisconsin prenuptial agreements.  


Are You Considering A Prenup In Wisconsin?


A prenuptial agreement, or prenup for short, is an agreement two future spouses form before getting married. Wisconsin is what is known as a community property state. That means that any assets or debts acquired during the marriage are considered “marital,” or, in other words, joint. You both own the assets and are liable for the debts. Think of a prenup the same way you think of car insurance, you don’t plan to get in an automobile accident, but you carry the insurance anyway; the same can be applied to a prenup.  


Property that goes to one spouse through gift, will, or devise is considered separate property unless it is co-mingled with community property. An example of how this can happen is you receive a gift of $5000 from your parents. That gift is separate property, and it is yours alone. However, consider taking that gift of $5000 and using it to pay off the vacation property you and your spouse purchased during the marriage. In that case, that separate property is now co-mingled with marital property, and it will be difficult, if not impossible, to back out of the asset. Another example of co-mingling is when a piece of separate property is refinanced during a marriage. The lender tells one spouse that both spouses must be included in the refinance. First and foremost, this is not true, but most people usually sign off on it anyway, putting the other spouse on the hook for what should have been a separate debt.  


With the understanding that most assets and debts acquired during the marriage are community, a prenup can clarify what will be separate and what will be community. While no one wants to think about things not working out, having a financial plan in case they don’t can take away a lot of the stress and difficulty connected with the marriage ending.  


Prenup agreements are pretty flexible, so there is no “one” way to construct them. If you and your future spouse are considering having a prenup created, you should first sit down together and talk about what each of you thinks is fair in the event of a divorce. Cover every possible topic that a prenup could address, like what is marital and what is separate, what to do with kids if you have them, whether you want spousal support, and if there is the property currently owned that you would like to remain separate. Here are some reasons why a lot of people get prenup agreements:  


Do You Own A Business?


If you own a business, consider having a prenup before marrying. If you created and built your business on your own, you should ensure that you have the highest level of protection from the business being split and sold off. This is especially important if the basis of the business is something that you and you alone can provide. For example, if you are an interior designer, your business is based on your artistic talent, and you certainly don’t want the profits from that taken away from you if the other spouse decides that they want a cut of your profits. You can draft a prenup that either confirms the business as separate property from the start or, if you create a business during the marriage, keeps the business separate.  


Another consideration is if you work for a family business. If you are in business with your family, you will need to take the appropriate steps to protect it from a divorce. Your family put work into the business, and there is no reason for a divorce to take away any of their hard work over the years. A well-negotiated prenup can protect the family business.  


Do You Have Children From A Previous Relationship?


Although it seems like this wouldn’t matter, it does. You will want to have a prenup agreement to protect whatever inheritance you want to leave for your children. A good prenup will ensure that your spouse cannot go after any assets you have set aside for your children’s future.  


Do You Have Significant Assets Or Inheritance?


If one of you already has considerable assets or is set to receive considerable assets, you will want a prenup. The importance of clarifying on paper what is separate property cannot be overstated. Furthermore, you should protect your retirement benefits, which can seriously affect your retirement plans if split during a divorce. Consider this, do you want an agreement to protect your retirement benefits, or do you want to work for an additional decade to make up for what your spouse was given in the divorce? A solid prenup can protect you from being forced to either work longer or make larger contributions, both of which would be tough to do. As another example, if you might be the beneficiary on a trust that does not have terms that address possible spouses of beneficiaries, you will want a prenup to prevent your spouse from taking assets out of any trust you are a named beneficiary on.  


Do You Expect To Make A Lot of Money?


Perhaps you meet your spouse while in medical school and plan on becoming a doctor. The difference in income between now and later on will most likely be significant, so negotiate a prenup now before you have to try and convince your spouse to negotiate a postnuptial agreement, which can be done. Still, you won’t have the same leverage as you do before tying the knot.  

prenuptial agreement paperwork with red hearts and pen


One Or Both Spouses Have a Lot Of Debt


This is one people don’t think about often. They usually focus on the money they have, not the money they owe, but it is the same. If you or your spouse is carrying a lot of debt prior to marriage, you will need to take steps to protect the other spouse from being on the hook for it. Declare the debt separate prior to marriage with a prenup. With student loans, tax debt, and credit card debt, these can all be declared separate property and leave the other spouse protected from collection action if things go south.  


So How Do I Make The Prenup Happen?


First and foremost, use an attorney. Do not print out a boilerplate form from the internet; expect it to be valid and enforceable. Too many people these days are getting caught in a feeling of false security with pre-made legal forms on the internet. A good prenup follows the applicable law in the state where it is drafted and addresses everything that each party wants it to include. It also contains certain waivers you will want an experienced divorce attorney to review before signing.  


Next, understand that this is a negotiation. A last-minute forced prenup can be defeated in court. For example, do not hand your future spouse a copy of a prenup two nights before the wedding and say that either they sign off on it or the wedding will not happen. It’s a pressure tactic that will not work out for you. Start early, discuss things thoroughly with your future spouse and understand that not only will your future spouse have changes, but they can and should hire an attorney of their own to assist with the negotiation. This is nothing personal, and they have the same rights that you do to approach the agreement thoughtfully and with the assistance of counsel. Give yourself at least 3-4 months before the wedding to work out the agreement so that you both are comfortable with it and it is enforceable.  


Finally, understand that the prenup agreement is between two people. It is very likely that you will not get everything you want exactly the way you want, but you can get most of what you want, or at least the significant issues can be addressed. On the other hand, if you are the one who was not considering a prenup and you are surprised that your future spouse is asking for one, don’t take it personally. It is not so much about you but about what that person wants to protect in the future. Try to keep an open mind and understand that you can ask for things as well, and it is not all about what they want. Feel free to make suggestions and have your own goals for the agreement.  



So we never answered whether prenups are smart or the death of romance. Clearly, prenups are smart for the reasons listed above and don’t need to be the death of romance at all. There is no reason to think that if you sign a prenup, the marriage will not work out and be forever. It is simply a safety net for if things do not go the way either party wanted them to, not a prediction of the future. If you are considering a prenup agreement in Wisconsin and would like to talk to an experienced family law attorney, feel free to call O’Flaherty Law; we would be happy to help you.  

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.

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