In general, Wisconsin law presumes that almost all property (titled or untitled) held by either party in a divorce is jointly, or equally, owned by both. There are a few exceptions, usually for gifted and inherited property.
Since that is the case, couples often consider creating a prenuptial agreement before the marriage to cover property held by either or both parties. Prenuptial agreements will change the legal presumption of joint ownership to ownership which matches the wishes of the parties.
In order to accomplish this, you’ll need to have some heart to heart talks with your future spouse about your property, their property, and the wishes you both have about what you own.
Sometimes couples ask, “Doesn’t a prenup set up the marriage to fail?” or “Doesn’t a prenup mean that we’re planning that there will be a divorce?” The answer to both questions is absolutely not . In fact, a prenuptial agreement often brings great reassurance to both parties that the needs of previous children — and protection of assets — have been addressed.
People enter into prenuptial agreements for a variety of reasons. Perhaps either party wants to protect their assets. Perhaps one wants to protect the other from debt. Usually, one party wants to keep individual ownership of previously owned property. This type of agreement protects those assets in the event of death or divorce. It can also address other issues such as spousal maintenance (previously called alimony). Financial Disclosure Statements traded between the parties ensure that both parties are aware of all debts and assets owned by each of them so neither one is entering into the agreement without all the facts.
Prenuptial agreements can also be creative, addressing specific concerns and wishes. They could even contain provisions that change with the passage of time. For example, ownership interests can be changed after five, ten or any designated number of years of marriage. Agreements can protect marital children and children from prior relationships. They can even determine that certain determinations will be made down the road. For example, maintenance could be specifically reserved to be determined by a court if divorce should occur.
The best way to determine if you would benefit from a prenuptial agreement is to meet with a lawyer. Be sure to do this well in advance of marriage. Give plenty of time to reach agreements between both of you and with counsel. Then the agreement can be signed without the added pressure of a pending marriage ceremony.