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.
Understanding Postnups in Wisconsin
Inequity
Button v. Button (1986) – An agreement is inequitable if it is unfair in the way it was obtained or in how it distributes property rights.
Marital Property Law
§ 766.15 – Spousal Responsibilities
- 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.
§ 766.17 – Agreement Variations
- Marital property agreements can change most chapter effects, excluding specified sections.
- The impact of these agreements on property available after a spouse’s death is governed by section 859.18(6).
§ 766.58 – Creating and Enforcing Agreements
- Must be signed by both spouses, enforceable without consideration, and cannot adversely affect child support rights.
- Agreements can cover property rights, management, disposition upon significant events, modify spousal support (with restrictions), and specify inheritance mechanisms without probate.
- Amendments or revocations require a subsequent agreement; premarital agreements activate upon marriage.
- Agreements are void if proven unconscionable, involuntary, or made without proper disclosure.
- Certain retirement and insurance designations are unaffected by default; courts decide on unconscionability.
- Spousal support modifications cannot reduce a spouse below adequate support levels; public assistance eligibility may require court-ordered support despite an agreement.
- Arbitration agreements are enforceable; agreements can be recorded in county records.
- Pre-existing documents between spouses are generally unaffected except as otherwise agreed post-determination date.
- Statutes of limitations for enforcing agreements pause until marriage dissolution or spouse’s death, with a six-month action limit post-inventory filing.
§ 766.585 – Pre-Determination Date Agreements
- Spouses can agree on property arrangements before their determination date, effective post-date, with current laws applying upon activation.
§ 766.97 – Equal Rights and Disabilities
- Gender equality in legal rights, including property and contractual relations; common law spousal duties abolished.
- Legal frameworks don’t revive historical legal disabilities against women’s property rights.
§ 767.375 – Marital Agreement’s Death Provisions
- Divorce or separation revokes certain death provisions in marital agreements, with specific transfers to former spouses governed by section 854.15.
§ 705.10 – Nonprobate Transfers
- Designations for property transfer upon death in various instruments are non-testamentary, unaffected by creditor rights, and don’t require probate confirmation.
§ 861.10 – Elective Share Waiver
- Surviving spouses can waive deferred marital property elective shares through enforceable agreements or court-filed documents, with “all rights” waivers including elective share rights.
