Full question:
Hello,I am currently living in Wisconsin where I plan to get married soon. My understanding is that in case I live in another state in the future, California for example, and divorce; I may have to follow the rule of California and not Wisconsin (in case for example my wife decides to file for divorce over there ). Does filing a Wisconsin Prenuptial Premarital Agreement that re-states the Wisconsin marital laws guaranty that these laws will be enforced in case of a divorce and not those of California or of any other states?
- Category: Marriage
- Subcategory: Premarital Agreements
- Date:
- State: Wisconsin
Answer:
A valid prenuptial agreement generally overrides state laws regarding the division of marital property. However, to ensure that Wisconsin law applies, the agreement should include a choice-of-law provision specifying which state's law governs the agreement. Courts typically enforce these provisions, but some states may not always do so consistently.
The prenuptial agreement should be filed in the state where you currently reside, such as Wisconsin, and recorded with your county clerk's office before the wedding. Prenuptial agreements are often used when one or both parties have significant assets, wish to keep property separate, or have children from previous relationships. It's advisable for both parties to consult with separate attorneys to ensure the agreement is fair and legally sound, minimizing the risk of future challenges.
When enforcing prenuptial agreements, courts usually examine three key issues:
a. Was the agreement entered into voluntarily?
b. Did both parties have the chance to consult their own legal counsel?
c. Was there full disclosure of all assets, liabilities, and income?
If these conditions are met, the burden of proof shifts to the party challenging the agreement. Courts will then assess whether the agreement was unconscionable at the time of enforcement.
Factors that may invalidate a prenuptial agreement include:
a. Unconscionability — the agreement must be fair and not cause undue hardship to one party.
b. Lack of independent counsel — each party should have their own attorney.
c. Incomplete or false information — full disclosure is essential.
d. Invalid provisions — clauses limiting child support are unenforceable.
e. Insufficient time for consideration — both parties should have adequate time to review the agreement.
f. Undue pressure — the agreement should not be signed under coercion.
g. No written agreement — oral agreements are not enforceable.
To ensure enforceability, the prenuptial agreement should include full financial disclosures, both parties should have legal representation, and the agreement must not be unconscionable. A reasonable review period of six to eight weeks is recommended to avoid any claims of pressure or duress.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.