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FAMILY LAW: The problem with prenups

Gregg Herman is a shareholder with Loeb & Herman SC, Milwaukee, which practices exclusively family law. Herman can be reached at gherman@loebherman.com.

Prenuptial agreements designed to govern a future divorce are strange animals.

They’re designed to be effective at an unknown time in the future, which both parties hope never occurs. In fact, in a weird twist of logic, marital agreements only have a presumption of validity if they are in contemplation of an ongoing marriage, the opposite of the event in which it would go into operation.

While the agreement must have some semblance of “fairness,” there’s no definition provided of what that term means. Clearly, the agreement does have to replicate a property division as if there was no agreement. In addition, if circumstances change after the date of execution of the agreement, fairness must be reassessed at the time of application. And, of course, circumstances will have changed. Life does go on, after all.

While it’s difficult enough to ascertain what would be fair at the time of execution, it’s even more difficult to guess what changes might occur after the marriage. As the great philosopher, Yogi Berra, once said: “Predictions are difficult to make — particularly about the future.”

Two recent Court of Appeals cases found that changes of circumstance caused agreements to be unenforceable at the time of divorce. While neither case was published, they’re both authored opinions and therefore may be cited for their persuasive value, pursuant to Wis. Stat. §809.23(3).

In Zernia v. Zernia, No. 2012AP838 (Ct. App. 2013), the District 4 appellate court reversed La Crosse County Circuit Judge Todd Bjerke’s ruling enforcing a premarital agreement. Judge Joanne Kloppenburg’s opinion for the panel, released in February, held that the wife’s departure from the workplace, her contributions to homemaking and child care, and her inability to independently support herself financially were unforeseen circumstances. In addition, the court noted the parties’ general lack of adherence to the agreement. As a result, the court held the agreement’s terms were inequitable to the wife, thereby rendering the entire agreement unenforceable.

Prenuptial agreements frequently specify how the parties intend to handle their finances during the marriage. Then, life intervenes and the agreement may — or may not — be followed. In addition, leaving the workforce to take care of children hardly seems to be an unforeseen circumstance for a woman getting married. Rather, for many marriages, having children and taking care of them are quite well contemplated.

More recently, in Hartford v. Hartford, No. 2012AP1911 (Ct. App. 2013), the appellate court upheld a trial court ruling that disregarded a prenuptial agreement.

The opinion, once again penned by Kloppenburg and released in August, concluded that Racine County Circuit Judge S. Michael Wilk properly exercised his discretion when he determined that allowing the husband to keep property acquired after the marriage as non-divisible property wasn’t in line with the wife’s reasonable expectations, and that the agreement was therefore inequitable and not binding upon divorce.

According to the trial court, the wife didn’t expect that her husband would convert his business from a C-Corporation to an S-Corporation or that he would invest in additional businesses that became associated with his main business. With no disrespect to the wife, my guess is that she had no contemplations at all regarding her husband’s operation of his business. In all likelihood, she didn’t sign the agreement — or get married — with any expectations regarding the eventual tax options that her husband might select.

As previously noted, while both of these cases only can be cited for their persuasive not precedential value, it’s easy to contemplate that virtually every marriage will have similar changes in circumstances. Businesses make elections all of the time. Women have babies and sometimes choose to leave employment and devote themselves to child care.

One way to avoid having an agreement become non-effective would be for parties to revise their agreement from time to time based on new circumstances. But that’s unlikely to happen. I can’t speak for other marriages, but any conversation I might have with my wife that would start with, “Let’s talk about what happens if we get divorced,” is unlikely to have a happy ending. As a result, the agreement typically sits in a drawer and is ignored until it’s needed.

Absent a better definition of what changes in circumstances would nullify an agreement, this is a ripe area for litigation. Lawyers who draft such agreements need to advise their clients that if circumstances change, the agreement might become meaningless.

And, since circumstances are always changing, are these agreements really helpful, after all?

7 comments

  1. As you note Gregg, circumstances are always changing. It seems like these agreements aren’t worth the paper they are written on. That is too bad as people should be able to make a deal and live with it.

  2. Gregg; I agree and have been saying this for years. In Minnesota the agreement has to be fair and inception and at enforcement. Frankly, sound advice about the preservation of non-martial assets is more important.

  3. It’s hard to create an agreement that is fair months before marriage and hope that it still makes sense years down the road at the time of divorce. But it’s better than getting taken for a whole bunch of money.

  4. I agree. If both people sign the agreement then they are in accord. It’s a lack of commitment in general that has been bombarding our nation for years. People appear to believe they no longer need to be held accountable for their actions.

  5. J. Steven Anderson

    The problem seems to be that the court in the cases cited failed to enforce what should have been a valid contract. Marriage is the primary consideration for the contract. But for both parties agreeing to the terms of the contract, one would presume that the marriage would not take place, and the concept of “marital” and “non-marital” assets, and spousal support, would not be an issue. It seems much more inequitable to me to deny one party the benefit of the agreement they relied upon in entering into the marriage.

  6. Why don’t you adopt european nuptial agreements: separation of assets OR joint ownership at the moment of marriage. This solves the problem once and for ever. You are complicating things with these prenups!

  7. https://smolyhokes.blogspot.com/2021/06/1feministdivorceprenuptialinsurance.html

    A Solution to Feminist Divorce Concerns about Prenuptial Contracts with Successful Men

    Feminist lawyers, among others, worry about post-divorce status of women that marry men with a more substantial financial position and therefore require a prenuptial contract before getting married.

    For financially successful men, one of the huge troubles is that family law typically treats these men, and these men alone, as wealthy insurance resources against all manner of “changed circumstances” and “unforeseen circumstances.” This is despite that fact that the government has far more power and resources than the men to provide this insurance. Essentially, the government is abdicating its financial responsibility and simply dumping the responsibility on men because it has the power to do so. In the absence of marriage, it is worth noting that the government has some responsibility to deal with “changed circumstances” and “unforeseen circumstances.” Of course, when payments come out of the government’s pocket, these payments are usually far less than when the government can take them out of a man’s pockets.

    What is needed to protect people is a divorce insurance policy against any changed or unforeseen circumstances not covered in the prenuptial agreement. Essentially, instead of this insurance being provided solely by the man, at the whim of the government, an insurance policy is purchased by the couple that will provide adequate financial resources to the woman. Ideally, this insurance would be purchased from the government, giving the government a stake in keeping the insurance payouts and premiums reasonable. Currently, the government has no incentive to keep the payouts reasonable because the government has no skin in the game. (I suppose a private company might provide the insurance instead of the government, but then the government still has little incentive to keep payouts reasonable and the private company insurance premiums may be higher to reflect this fact.)

    So part of the prenuptial negotiation will be to determine the insurance payout that provides the woman what she considers adequate protection. The insurance premium can be paid from marital funds generated during the marriage, because it is a joint responsibility to ensure adequate protection. This provides adequate protection for the woman while not requiring any pre-marital or post-marital resources from the man. Thus, the man is insured against having to supply his separate non-marital resources to cover what is a joint marital responsibility.

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