By: Attorney Lindsey A. Kujawa
While it may feel like you are negotiating a divorce in anticipation of your wedding day, the financial topics associated with prenuptial agreements clarify expectations and can create a strong foundation for your marriage. Most prenups address both divorce and estate planning so you need to be sure you work with a lawyer who has expertise in both areas of law. If you are unable or unwilling to communicate and jointly create a clear financial and legal plan before you get married, you may unintentionally set the stage for future marital issues.
A prenup is a valuable way to plan for your future together. Done right, it can be a positive experience for both of you.
In Wisconsin, the following criteria help assure a clear and enforceable agreement:
1. Each person is represented by an attorney
It is not required that a prenuptial agreement involve two lawyers, but the fairness requirements for validity set up in Wisconsin caselaw invite a challenge wherever parties are unrepresented. The best, most enforceable prenups are made with the assistance of collaborative counsel working together to ensure that the parties are making informed decisions.
2. Each person needs to fully disclose their finances to the other
A thorough financial disclosure is key to informed decision making. Having an understanding of the complete financial picture allows parties to structure their agreement to meet financial needs and provides certainty of expectations.
3. Don’t forget financial agreements during the marriage
A prenuptial agreement is more versatile than simply “who gets what in a divorce” or “who gets what at death”. A well-drafted prenuptial agreement also addresses household finances and asset/debt allocation during the marriage.
4. Timing matters
Each party must have adequate time to review the agreement and understand all of its terms .The best practice is to begin the negotiation well in advance of the wedding date to ensure neither party feels rushed. Last minute agreements can also be a basis for court challenges later.
Some couples decide they need a financial agreement long after their wedding. It is an option to create a postnuptial agreement using the above criteria. The one exception is timing. A postnuptial agreement may not be valid if entered into in anticipation of divorce. Any divorce agreement is not simply contractual, but must be approved by the court. Postnuptial agreements can help couples clarify financial allocations and obligations to avoid ongoing conflict and create a foundation for future decisions about finances and estate planning.
Lindsey A. Kujawa practices family and estate planning law at Hansen & Hildebrand, S.C. Contact her at (414) 273-2422 or contact us to discuss your concerns and get the legal advice you need to decide next steps.