Friday, May 18, 2012

With Summer Comes Pre-Nuptial Season

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As May gets into full swing, so do the meetings on my calendar that involve marital property agreements.  Why?  As summer approaches, so does an increase in the number of weddings.  And with marriage, one often finds the martial property agreement (hereafter MPA), otherwise known as a pre-nup.  If you are planning to say "I do" this summer, you might wonder if you need to add creating a MPA to your to-do list.

First, a MPA is a contract between husband and wife that classifies property (assets and liabilities) as either marital or individual, and would be reviewed by a court upon either divorce and/or death.  If property is classified as individual, then the spouse who owns the property may give it to anyone he or she wishes.  This means that the other spouse has no legal interest in the property, which is contrary to Wisconsin’s Marital Property Law.  By agreeing to classify property as individual, the spouses are forgoing his or her legal claim to the property.  Please note that marital property agreements are not always upheld in court.  Reasons for a court disregarding a couple’s stated intentions in a marital property agreement include, but are not limited to: inadequacy of counsel, no counsel, or one party did not fully disclose his or her assets.

Second, a MPA is useful when you want to deviate from Wisconsin law.  This may occur in situations with blended families or when property (i.e. farm or cabin) will be passed down the blood line and not to a surviving spouse.

Third, a MPA can say one of three things about individual property:

  • items brought to the marriage (by one or both) is individual and will stay so after marriage, everything acquired after marriage is marital;
  • items brought to and after marriage (by one or both) as well as items acquired after marriage, are individual; or
  • everything brought to and acquired after marriage are marital (useful when children may object to assets going to a step-parent) property.
People often hesitate to get a lawyer involved; we cost money and it can be an unpleasant situation.  However, if you fall into an above mentioned category, seeking counsel prior to marriage can save a lot of time, energy and heart ache.  And note, even if you did not create a MPA before saying "I do", it is not too late.  There is such a thing as a post-marital agreement.

Enjoy your summer, and have a fun time as wedding season goes into full gear.

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