What Is a Wisconsin Postnuptial Agreement?
A Wisconsin postnuptial agreement outlines the terms spouses will use to divide assets during a divorce. Per WI Stat § 766.588, it starts with property that either spouse owns prior to the marriage. It also covers property acquired during the marriage that would otherwise count as marital property.
Without a postnup, Wisconsin courts will use community property laws to divide assets following a divorce. Under those laws, each spouse has equal ownership of property acquired during the marriage. That means each spouse will also receive an equal share in that property if they split up.
Wisconsin has several requirements for postnup enforceability. They are laid out in WI Stat § 766.588(5). Under these requirements:
- Each spouse must fully disclose all assets.
- Both spouses must enter into the agreement voluntarily.
- The agreement must establish a fair and reasonable distribution of marital assets.
WI Stat § 766.588(9) gives specific language acceptable in a postnup. When your contract follows this format, it’s more likely to be upheld.
You will enter into a postnup when you want to create such an arrangement after your marriage. If you want a contract that protects your assets prior to marriage, you need a prenuptial agreement.
How to Write a Postnuptial Agreement in Wisconsin
To ensure the legality of your Wisconsin postnup, include these key elements. Our Wisconsin postnuptial agreement form can help you review each detail step by step.
- Initial details: Provide full information about both parties, including their names and the date and location of your marriage. You must include your address at the time of marriage and information about any children.
- Financial disclosure: List all assets and accounts you own. Under WI Stat § 766.588(5), both parties must fully disclose all assets and financial information. If they do not, the court will not enforce a postnup.
- Property: List any property owned by either spouse, including real estate and large physical assets. Determine how you will distribute that property if you and your spouse divorce.
- Business ownership: Provide any information about businesses owned by you or your spouse. Give information about a business continuity plan if a divorce occurs, including who will take ownership of the business.
- Debts and taxes: Disclose debts and provide information about taxes related to property and assets. Explain who will take care of those debts and who will take responsibility for paying taxes.
- Housing: Provide specific information about housing arrangements. Think about how you will handle the marital home. You might decide that one spouse will keep the home or that you want to sell the property to cover other assets.
- Pets: Determine any pet custody arrangements. Consider both pets owned before the marriage and pets you purchased together.
- Spousal support: Under WI Stat § 767.56, the court can award spousal support based on the length of the marriage, each spouse’s financial needs, and earning capacity. However, a postnup can override common terms.
Sample Wisconsin Postnuptial Agreement
View a free sample of a Wisconsin postnuptial agreement to learn about its format. Then, create your own using our form and download it in PDF or Word format.
Legal Requirements and Considerations for Wisconsin Postnups
Wisconsin has several legal requirements that you should keep in mind as you design your postnup. When asking whether postnups are enforceable in Wisconsin, you must consider these elements.
Signing Requirements
Under WI Stat § 766.588(9), both spouses must sign the postnup in the presence of a notary. The agreement goes into effect on the date both parties sign it and the notary acknowledges it.
Legal Representation
Wisconsin law does not require each spouse to have a separate lawyer to enter into a postnuptial agreement. However, when you each have your own lawyer, you can make sure that the document fairly reflects your financial needs for the future.
Excluded Terms
A postnuptial agreement in Wisconsin can lay out the terms of property division and even how you will handle alimony. However, it cannot contain terms that negatively affect the right of a child to receive child support. It also cannot include a waiver of child support.
Terms related to child custody can be included, but they will be closely scrutinized by the court if the agreement is challenged. The court will determine child support at the time of divorce. Its terms will reflect the best interests of the child, not the parents.
Inheritance Rights
Under WI Stat § 852.01, if you or your spouse dies without a valid will, the surviving spouse will generally receive their assets. The surviving spouse will usually inherit all assets if all of the deceased’s children are a result of their marriage.
However, a postnup can override some of those terms. It may, for example, designate specific assets to other family members.
Binding Terms
The court considers the terms of a postnup binding. It will generally use those terms to divide property following divorce. However, a court in Wisconsin will subject that agreement to a three-part fairness test.
In Button v. Button, a postnuptial agreement was challenged as being unfair. In this case, Mrs. Button received almost no assets under the original terms of the divorce.
She required public support despite considerable assets from the marriage. Not only that, while she could not work, Mr. Button continued to work and bring in an income. The appeals court found that the lower court did not consider three factors in determining the fairness of the agreement: (1) whether a full disclosure was made; (2) whether the agreement was freely signed; (3) whether the terms are fair to each spouse. This decision further clarified the requirements for the enforceability of postnuptial agreements.
