Pre-nuptial and post-nuptial agreements allow spouses to opt out of Wisconsin’s marital property rules at divorce. Pre-nups (called Marital Property Agreements in Wisconsin) usually make property that would otherwise be marital and divided between the couple into individual property. Individual property is not divisible at divorce. Therefore, depending on the wording of the agreement, one spouse may be left with far less than an equal share of the property, even after a long marriage. However, in order for pre-nups to be upheld in court, both parties must have entered the agreement knowingly, with full knowledge of each other’s assets, and without being coerced. They also must meet some basic notion of fairness. Issues regarding the timing of the agreement, legal representation, asset disclosure, health issues, etc. can all affect the success of a challenge to a pre-nup. Any spouse who signed a marital property agreement, and wishes to challenge its validity, should definitely consult with an experienced family lawyer. Legal challenges to pre-nups are extremely fact-driven. The attorney must work with the client to specify those facts and form an argument early in the case. This is because the court will almost always hold separate hearings early in the divorce case to rule on whether the agreement should be upheld. It is vital to have skilled legal counsel make this argument. I have tried several cases in Dane, Columbia, and Sauk counties involving pre-nup agreements, and am happy to consult with spouses facing this issue.
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