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Bill would make all prenuptial agreements binding

By: Jack Zemlicka, [email protected]//October 17, 2011//

Bill would make all prenuptial agreements binding

By: Jack Zemlicka, [email protected]//October 17, 2011//

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A bill that would make prenuptial agreements ironclad is drawing a fight from judges and family law attorneys who argue fairness would go out the window with flexibility.

Assembly Bill 235 proposes any premarital agreement in an action for annulment, divorce or legal separation is binding with the court in matters dealing with property division and spousal support.

“The way the law is written, if someone signs with a gun to their head, it would be binding,” said Mike Dwyer, presiding judge in Milwaukee County Circuit Court’s Family Division. “This completely takes out the court’s power to consider the fairness of the agreement and I don’t get why that would be good policy.”

Dwyer said he has had cases where one party coaxed the other into signing a prenuptial agreement on the day of their wedding.

Those situations merit judicial intervention, he said, because the person who signed might have done so under pressure.

“‘Signing on the way to the alter’ cases are kind of a problem,” he said. “It just doesn’t happen where the person says, ‘Should we cancel the wedding because we need to take this document to a lawyer?’”

While current law in Wisconsin provides that property generally be divided equally, judges can alter the distribution of assets even if there is a premarital agreement.

Judges can evaluate factors such as if there was a fair and reasonable disclosure of the financial status of each person at the time of the agreement and if the agreement was entered into voluntarily by both parties.

The bill would do away with evaluation of those criteria by the court and simply make a prenuptial agreement binding.

The legislation also eliminates a judge’s ability to evaluate if the agreement was fair both at the time of its signing and at its execution.

That ability is valuable in cases where a couple’s financial circumstances have changed over time, said divorce lawyer Michele Perreault of DeWitt Ross & Stevens SC, Madison.

“I see these kinds of prenups where someone would be left without a dime to their name,” she said. “It may not be divided 50-50, but the judge is not going to let this person live in poverty after 30 years with someone.”

The change will force the jilted party to try and seek financial support through litigation, Perreault said.

The bill was introduced Aug. 30 by state Reps. Joel Kleefisch, R-Oconomowoc, and Joe Knilans, R-Janesville. A public hearing was held Sept. 29 in front of the Assembly Committee on Judiciary and Ethics.

No further action is scheduled at this time, said Stephanie Kundert, research aid for Kleefisch. The legislator’s goal with the proposed legislation, she said, is to have uniformity in the process of enforcing premarital agreements.

“The representative felt there were certain judges out there not upholding premarital agreements,” Kundert said, “as they were initially drawn up or agreed upon.”

If the law is passed, said Tom Walsh, chair of the State Bar of Wisconsin’s Family Law Section, more people may seek the security of a prenuptial agreement.

“There really won’t be any way to challenge it,” he said. “If this bill says these shall be binding, the court can’t say no.”


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