With certain exceptions, each spouse has a one-half interest in the other’s assets and income throughout marriage. The couple can enter a prenup, however, to modify that default arrangement, and classify some/all property as individually owned by one spouse. Prenuptial (or marital property agreements) are encouraged in Wisconsin to allow the couple to structure their relationship as they see fit. However, they remain rare. Even when they exist, there are very often substantial problems including dual representation by one attorney, poor drafting, lack of financial disclosure, etc. Inevitably, in the event of divorce, the spouses end up arguing over the fairness or even existence of the prenup. So the purpose of the agreement, to provide clarity at divorce, is often defeated. Could these problems be avoided by requiring that every couple enter a prenup before getting married?
The State of Wisconsin has authority to regulate marriage, and does so in several areas. There are regulations governing the actual process, and who can marry, where, and when. Wisconsin courts have repeatedly stated that the State has a legitimate interest in overseeing marriage and divorce. Could the State extend this interest to require that couples engage in marital planning through a prenup as a prerequisite to marriage? Perhaps a better question is: should the State inject itself into a couple’s life this way? As a benefit, partners would enter marriage aware of each other’s finances, having considered their financial arrangements before making a lifelong decision. Also, the prenup would provide clarity at divorce. The downside is reducing marriage to a business arrangement, the difficulty in accounting for changes after marriage, and the State’s interference in a mostly private affair. Given the current broad dispute about the government’s proper role in citizen’s lives, such a requirement could be viewed either as a welcome educational opportunity for new couples, or a deep intrusion into private life.
Given the high financial and emotional toll of divorce, I would be curious to see if any readers think a mandatory prenup is a legitimate option? I have extensive experience in this area, and am available through email and telephone to continue the discussion.
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