ENFORCEMENT OF PRENUPTIAL AGREEMENTS IN WISCONSIN: PROVISIONS REGARDING DIVISION OF PROPERTY UPON DIVORCE

Maybe you entered a marital property agreement (prenup) prior to your marriage, and now that you are contemplating divorce, you assume there is no point in discussing division of property because the prenup’s provisions will control. Or maybe you are considering signing a prenup as an iron-clad guarantee that if you ever divorce, property will be divided as you wish.

In either case, think again. Yes, in Wisconsin, prenup provisions concerning division of property are presumed to be valid and enforceable pursuant to the divorce statutes. Still, there are many possible grounds for challenging a prenup and having it thrown out.

Challenges to the property division provisions of a prenup are analyzed under Button v. Button, 131 Wis.2d 84 (1986), and cases applying Button. In summary, Button provides that a prenup may be vulnerable to challenge if the parties did not make full financial disclosure to each other before signing the prenup and entering the marriage. It may be vulnerable to challenge if one spouse did not have a meaningful choice whether to enter the agreement, considering factors such as adequate time to evaluate the agreement, advice of independent counsel, and comprehension of the agreement. It may be vulnerable to challenge if it was unfair to one of the parties based upon their circumstances at the time it was signed, or if it is unfair to one of the parties at the time of divorce due to unforeseeable changed circumstances. Under Button, a prenup will be thrown out if a court finds that it fails on any one of these points.

Marital property agreements (also known as premarital property agreements) can be a valuable tool under many circumstances. But keep in mind that they are not always invulnerable.