Marital property law in Wisconsin
March 14, 2014 5:44 PM   Subscribe

If anyone here is familiar with marital property laws in Wisconsin, can you tell me if my boyfriend's views are correct?

He says that Wisconsin is a community property state, meaning that all our assets and debts become joint property when we marry, and are split 50-50 in divorce. He is particularly concerned about being on the hook for any debts I incur and having to give up half of whatever assets he has if we divorce. I suggested we could just sign a prenup to cover anything that is important to him, but he said that there are no laws in place to guarantee the prenup would be valid, and that he would still be responsible for half my debt.

All of this is purely theoretical at this point. We're both good with money. We currently own a house together and split all expenses, and we each have a car loan, some small credit card debt, and large student loans (mine especially). He makes about 30% more than I do, but we both have standard middle class salaries, so there's not a huge disparity. He is not at all miserly, and is in fact incredibly generous and pretty unconcerned with money in every area except this one (which he knows is a little irrational). I'll never be wealthy but money-wise I'm perfectly self-sufficient. Assume no kids.

Which brings me to the real basis for his fears: his parents have married and divorced EACH OTHER three times now, with bitter divorce disputes each time. His mother made good money while his father racked up huge debts, and with each divorce his mother both lost her savings and acquired a new chunk of debt.

I have zero experience with divorce, so I can't tell whether this is the norm or an extreme example. Is there a legally-binding way to draft a prenup to protect individual property? (Just in case future-me becomes money-hungry and litigious.) Or agree ahead of time to a non-vindictive divorce? If we were to take out loans individually while married would they also be automatically split in divorce? I'm looking for Wisconsin-specific answers, as we don't plan on moving any time soon.
posted by ella wren to Law & Government (10 answers total)
Wisconsin has enacted the Uniform Premarital Agreement Act (full text here). So yeah, a validly drafted and executed pre-nup (get a good lawyer) is legally binding in Wisconsin.
posted by katemonster at 6:00 PM on March 14, 2014 [2 favorites]

Your boyfriend misunderstands community property. Assets purchased and debts incurred after marriage become community property, not before (lest any agreement by your boyfriend to jointly own any property or jointly sign any debt).
posted by saeculorum at 6:03 PM on March 14, 2014 [2 favorites]

What saeculorum says is normally the case, but Wisconsin has kind of a bastardized version of community property that is not CP per se, and that does consider debts and assets from before the marriage as part of the marital estate unless they were inherited or were a gift, or were purchased with money from either an inheritance or a gift.
posted by katemonster at 6:09 PM on March 14, 2014 [2 favorites]

posted by katemonster at 6:10 PM on March 14, 2014 [1 favorite]

He is substantially correct about assets and debts (gifts and inheritances exempted). Pre-nups CAN be overturned if they are not drafted correctly (like under duress, shortly before the wedding), both sides do not have adequate independent legal advice, do not have full disclosure and/or are not inherently fair under the law. Prenups are also more likely to be overturned the older they are; they are created with a set of assumption that will undoubtably change. Say, for example you draft a reasonable prenup where you each retain your own pre-martial debts and asserts and agree to split evenly the house and your individual retirement and savings accounts as well as debts acquired during the marriage. But then hubby loses his job - through no fault of his own - and instead of using his premarital assets to support himself you end up paying the bills by yourself for a few years. This means delaying paying off your student loans but, you figure, he'll get back on his feet and pick up the slack financially so you can wipe out the loans while not paying bills in future. But, life happens, he asks for divorce, walks away with all his premarital assets, you get all your premarital debts, there are no marital debts because you paid them all,and the little bit of marital assets both of you have (like the retirement and savings funds only you have paid into) get split in half. What WAS a fair agreement (and would have been fair in other circumstances) now screws you over. Courts recognize the change in circumstance happen in most marriages and allow the re-opening of the pre-nup because the scenario it covered was not reflected by the reality of the relationship.

I don't think there really is a fair answer, despite all the law tries to do; a prenup is a place to start but is not the only, or final, solution. Since you are already co-mingling funds you should talk to a lawyer, and a therapist to help you discover what you both can agree to if you get a pre-nup.
posted by saucysault at 6:20 PM on March 14, 2014 [1 favorite]

Which brings me to the real basis for his fears: his parents have married and divorced EACH OTHER three times now, with bitter divorce disputes each time. His mother made good money while his father racked up huge debts, and with each divorce his mother both lost her savings and acquired a new chunk of debt.

This has nothing to do with Wisconsin Property law. Your boyfriend probably was pretty traumatized by what he saw. Thinking about getting married can trigger strong reactions in him. See a lawyer with him and talk the finances out of the picture. Ask him to talk out his fears.
posted by Ironmouth at 8:48 PM on March 14, 2014 [5 favorites]

He is asking for a legal guarantee that you won't somehow during the course of the marriage turn into a clone of his father. But bad as his father was, his mother played a role in what happened to her too. (Maybe not the first time, but she remarried the guy two more times, co-mingling their financial fates again and again. Even if she loved the guy, she could have chosen to live with him without remarrying him and setting herself up for his wasteful spending.)

I think there are two question for your guy:
1. looking at the facts, being realistic, what is the evidence that your wife-to-be (ella wren) is careful/wasteful with money. Since people are more likely to be consistent than to suddenly make changes in their attitude towards money, if ella keeps on exactly the way she is right now, are you OK with that?
2. What can you (ella's finace) do - on your own and in partnership with ella to keep debts from getting out of control during the marriage? Ideas might include regular budget discussions, access to each other's credit report (so you can't hide debt), a commitment to confront each other about problematic spending and if worse comes to worse, a commitment on your part to protect yourself and legally separate (and avoid occurring responsibility for future debts) if you and ella can't resolve any future money issues.

and a suggestion: couples counseling might help you have this discussion and also help him deal with his larger qualms about getting married.
posted by metahawk at 9:04 PM on March 14, 2014 [1 favorite]

I should mention - we are in couples counseling right now to talk this stuff out. You guys are entirely right to point out that this isn't something that can just be papered over with a legal document, but I did want a better understanding of what the law can cover in this situation.

I really appreciate the (very insightful!) comments on dealing with the emotional aspects of this as well, and we will definitely bring them up in therapy.
posted by ella wren at 8:54 AM on March 15, 2014 [1 favorite]

The problem I have with prenups is they are supposed to motivate certain behaviour (acting fair if the relationship fails). But they are a stick. You need a carrot. Most relationships, the relationship itself is the carrot and the reason people behave fairly and reasonably to each other. Wanting to use the stick, instead of the carrot, speaks to a paradigm your boyfriend subscribes to that I don't think you do. Oftentimes, having the stick is just not as effective as having the carrot.
posted by saucysault at 12:04 PM on March 15, 2014

I'm a huge fan of prenups and an even huger fan of making informed decisions about marriage and other legal acts.

It will be well worth the time and money to get legal advice about this. Find a matrimonial lawyer who can advise you both about Wisconsin marital law and also about the portability of your prenup to other jurisdictions (someone who is only barred in Wisconsin should be able to handle this if they are working in prenups, and also ethical and on top of their research). Agree to pay them for a couple of hours of work. I would say send them your questions, do an initial meeting with them where they can go over everything, and save some time (retainer $) for your follow up questions to be addressed either by email or phone or another meeting.

In my opinion (IAAL, IANYL, TINLA), whether you get married or not, if you end up becoming financially interdependent (a very usual element of both marriage and cohabitation), it is good to have a legal agreement. And not just as a stick. The process of creating it and getting clear on your values and the commitments you are making can be of great help for any relationship, even/especially a forever one.
posted by Salamandrous at 9:16 AM on March 20, 2014

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