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Areas of Practice
Contact Information
Karen D. Julian, R.N., J.D.
Karen D. Julian Law Offices, S.C.
Madison, Wisconsin 53711
Telephone: (608) 219-8619
Fax: (608) 236-4837
Email: kdj@karenjulianlaw.com

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Premarital and Marital Property Agreements

(These materials are for informational purposes only, to help you recognize your legal rights and responsibilities. They are not a substitute for speaking with an attorney regarding your specific circumstances.)

Wisconsin is a "marital property" state, and our statutes governing marital property and individual property and debts are very complicated. Under Wisconsin law, property acquired by the earnings of either party before and during the marriage, even though titled in one spouse's name, is considered property of the marriage, and each spouse has an undivided one half interest in each item of marital property. Gifts and inheritances are considered individual property, and not marital property, unless they become "mixed" with other marital property. Under Wisconsin law, a couple may use a formal marital agreement, made either before or after their marriage, to reclassify gifts, inheritances, and property owned prior to the marriage as marital property, or to classify assets acquired before and during their marriage as individual, and not marital property.

One of the first questions a couple should address is: What are our main objectives in entering into a marital agreement? Do we wish an agreement for use during our marriage, for protection of either of us upon the death of the other, for protection of any child or children, or for use in the event of a divorce?

A couple should also discuss the following issues:

  1. Support for a Minor Child.    
    Nothing in a marital agreement can adversely affect the right of a minor child to support.  This includes any child by a previous marriage, as well as any children born during a marriage.  Anything contained in a marital agreement which adversely affects a child's right to support will be deemed void by the courts.
  1. Property Rights and Obligations.
    The rights and obligations each party may have regarding property owned by either party, regardless of when or how it is acquired, may be set out in a marital property agreement.
  1. Management and Control.     
    Parties may reach agreements regarding who may manage and control their individual as well as their marital property.
  1. Incapacitation, Divorce or Death.    
    Parties may set out how they wish their property divided in the event of the incapacity of either of them, the death of either, or a divorce.
  1. Support for a Spouse.    
    Parties should discuss their wishes regarding support by one for the other during their marriage as well as upon any separation, divorce, or incapacity.
  1. Other Documents.    
    Parties may discuss making a will, trust, or other arrangement to carry out the terms of their marital agreement.
  1. Avoiding Probate.    
    Parties may discuss what they wish done with their assets at the time of either party's death.  These agreements may be included in the marital agreement so that the property may pass without probate.
  1. Forum.    
    Parties may decide which state's laws they wish to govern their agreement, in the event they move to another state during their marriage.
  1. Other Decisions.    
    Parties may make any other decision regarding their property that they wish, so long as that decision is not in violation of a public policy or a statute imposing a criminal penalty.

A formal marital property agreement can only be amended or revoked by another marital property agreement signed at a later time by both parties.  Parties may enter into a marital property agreement prior to their marriage, but it will take effect only upon their marriage.

A marital property agreement will not be enforceable if either spouse proves any of the following:

  1. The agreement was unconscionable, or totally unfair or unjust to one party, at the time it was signed.
  1. A party did not enter into the marital property agreement voluntarily.
  1. Prior to the agreement, one party did not receive a fair and reasonable disclosure of the other party's property or financial obligations, or did not voluntarily waive, in writing, the right to such a disclosure; and he or she did not have notice of the other party's property or financial obligations.

Given the requirement for "fair and reasonable" financial disclosure in order to enter into an enforceable marital property agreement, each party should fully disclose his or her assets, debts, income and ongoing obligations or budget to the other before the couple begins serious negotiations about the terms of a marital agreement.  When the parties discuss the terms of their marital agreement after full financial disclosure, each then does so with full knowledge of the other's financial status.  

Because of the complex, sensitive nature of a marital agreement, and the rights involved for both parties, it is preferable for each party to have an attorney to help him or her understand and negotiate the terms of the agreement.  Parties may use mediation or the collaborative model to help them negotiate their marital agreement.  Parties should remember, however, that this process takes time, and it is best to get any premarital agreement drafted and signed well before the wedding.

Karen Julian assists clients with both premarital and marital agreements, and she  also offers mediation and the collaborative model to her clients.