A Wisconsin postnuptial agreement is a legally binding contract between spouses that outlines the division of marital property in the event of a divorce or the death of one partner. Such agreements are sought by couples wishing to sidestep the unpredictability of divorce proceedings, where judges hold significant power over the allocation of assets.
While similar to prenuptial agreements, often referred to as “prenups,” postnuptial agreements differ primarily in timing; they are executed after the marriage has taken place, rather than before.
Legal Considerations
Chapter 766, known as the “Marital Property Act,” covers marital agreements, including postnups.
Assets and Property Rights
Property Ownership
- All property is presumed to be marital property. [1]
- Spouses must act in good faith in dealings involving each other’s property, an obligation that cannot be altered by a marital property agreement.
- A spouse’s management of their own non-marital property, even if it affects income, does not breach this obligation. [2]
Capacity to Contract
- State law abolished common law spousal duties and ensured gender equality in legal rights, including property and contractual relations.
- Legal frameworks don’t revive historical legal disabilities against women’s property rights. [3]
Marriage and Divorce
Separation Agreement
- Spouses can compose separation agreements or conditions on their own. Later, they can submit them to the court to seek legal separation or divorce. The court will treat the agreement’s stipulations as recommendations, so they won’t be legally binding and are subject to change. [4]
Spousal Support
- The courts may demand one party to make maintenance payments to another upon judgment of legal separation, divorce, or annulment. [5]
Estate Planning and Inheritance
Nonprobate Transfers on Death
- Designations for property transfers upon death in various instruments are non-testamentary, unaffected by creditor rights, and don’t require probate confirmation. [6]
Inheritance Rights
- Surviving spouses can waive deferred marital property elective shares through enforceable agreements or court-filed documents, with “all rights” waivers, including elective share rights.
