Marital Domestic Separation and Property Settlement Agreement Adult Children Parties May have Joint Property or Debts where Divorce Action Filed
Note: This summary is not intended to be an all inclusive
discussion of the law of separation agreements in Wisconsin, but does include
basic and other provisions.
General Summary:
There are (2) provisions governing agreements between married parties reagrding the division of property and
provisions for support. The first are known in Wisconsin as Marital
Property Agreements. Any Marital Property Agreement entered into
prior to marriage or during the marriage is governed by the provisions
of the Ch. 766, Wisconsin's Uniform Marital Property Act (UMPA).
A stipulation and property division agreement by parties to an action for
divorce, separation or annullment, may provide for the agreement of the
parties as to a division of property, for maintenance payments, for the
support of children, for periodic family support payments or for legal
custody and physical placement, in case a divorce or legal separation is
granted or a marriage annulled. This type of agreement is governed
by the provisions of CHAPTER 767 "ACTIONS AFFECTING THE FAMILY".
The requirements for both are substantially the same - Procedural and Substantive
Fairness. Marital agreements are generally binding on the Court as
long as they are not inequitable to either party.
Statutes:
In Wisconsin, Marital Property Agreements
are governed by Ch. 766, Wisconsin's Uniform Marital Property Act (UMPA)
and Property Settlement Agreements are governed by Chapter 767 Actions
Affecting the Family.
The Family.
CHAPTER 766
PROPERTY RIGHTS OF MARRIED PERSONS; MARITAL PROPERTY
[Individual Property]:
Property acquired by a spouse during marriage and after the determination date is individual property
if acquired by any of the following means:
(d) By a decree, marital property agreement
or reclassification under sub. (10) designating it as the individual property
of the spouse. Section 766.31(7). [emphasis added]
Marital property agreements. :
(1) A marital property agreement shall be a document signed
by both spouses. Only the spouses may be parties to a marital property
agreement. A marital property agreement is enforceable without consideration.
(2) A marital property agreement may not adversely affect the right
of a child to support.
(3) Except as provided in ss. 766.15, 766.55 (4m), 766.57 (3) and
859.18 (6), and in sub. (2), in a marital property agreement spouses may
agree with respect to any of the following:
(a) Rights in and obligations with respect to any
of either or both spouses' property whenever and wherever acquired or located.
(c) Disposition of any of either or both spouses' property
upon dissolution or death or upon the occurrence or nonoccurrence of any
other event.
(d) Modification or elimination of spousal support, except
as provided in sub. (9).
(e) Making a will, trust or other arrangement to carry out
the marital property agreement.
(f) Providing that upon the death of either spouse any of
either or both spouses' property, including after-acquired property, passes
without probate to a designated person, trust or other entity by nontestamentary
disposition. Any such provision in a marital property agreement is
revoked upon dissolution of the marriage as provided in s. 767.266 (1).
If a marital property agreement provides for the nontestamentary disposition
of property, without probate, at the death of the 2nd spouse, at any time
after the death of the first spouse the surviving spouse may amend the
marital property agreement with regard to property to be disposed of at
his or her death unless the marital property agreement expressly provides
otherwise and except to the extent property is held in a trust expressly
established under the marital property agreement.
(h) Any other matter affecting either or both spouses' property
not in violation of public policy or a statute imposing a criminal penalty.
(3m) Chapter 854 applies to transfers at death under a marital property
agreement.
(4) A marital property agreement may be amended or revoked only
by a later marital property agreement.
(5) Persons intending to marry each other may enter into a marital
property agreement as if married, but the marital property agreement becomes
effective only upon their marriage.
(6) A marital property agreement executed before or during marriage
is not enforceable if the spouse against whom enforcement is sought proves
any of the following:
(c) Before execution of the marital property agreement, that
spouse:
(7) (a) Unless the marital property agreement expressly provides
otherwise, a marital property agreement that classifies a deferred employment
benefit plan or an individual retirement account as marital property does
not affect the operation of s. 766.62 (5).
(b) Unless the marital property agreement expressly
provides otherwise, a marital property agreement that classifies as marital
property the noninsured spouse's interest in a policy that designates the
other spouse as the owner and insured does not affect the operation of
s. 766.61 (7). In this paragraph, "owner" has the meaning given in
s. 766.61 (1) (a) and "policy" has the meaning given in s. 766.61 (1) (c).
(8) The issue of whether a marital property agreement is unconscionable
is for the court to decide as a matter of law. In the event that
legal counsel is retained in connection with a marital property agreement
the fact that both parties are represented by one counsel or that one party
is represented by counsel and the other party is not represented by counsel
does not by itself make a marital property agreement unconscionable or
otherwise affect its enforceability.
(9) (a) Modification or elimination of spousal support during
the marriage may not result in a spouse having less than necessary and
adequate support, taking into consideration all sources of support.
(b) If a marital property agreement modifies or eliminates
spousal support so as to make one spouse eligible for public assistance
at the time of dissolution of the marriage or termination of the marriage
by death, the court may require the other spouse or the other spouse's
estate to provide support necessary to avoid that eligibility, notwithstanding
the marital property agreement.
(10) If the spouses agree in writing to arbitrate any controversies
arising under this chapter or a marital property agreement, the arbitration
agreement is enforceable under ch. 788.
(11) Married persons or persons intending to marry each other may
record a marital property agreement in the county register of deeds office
under s. 59.43 (1) (r). Section 766.58. [empasis added]
CHAPTER 767
ACTIONS AFFECTING THE FAMILY
Stipulation and property division:
(1) The parties in an action for an annulment, divorce
or legal separation may, subject to the approval of the court, stipulate
for a division of property, for maintenance payments, for the support of
children, for periodic family support payments under s. 767.261 or
for legal custody and physical placement, in case a divorce or legal separation
is granted or a marriage annulled.
(2) (a) A court may not approve a stipulation for child support or
family support unless the stipulation provides for payment of child support,
determined in a manner consistent with s. 767.25 or 767.51.
(b) A court may not approve a stipulation for a division
of property that assigns substantially all of the property to one of the
parties in the action if the other party in the action is in the process
of applying for medical assistance under subch. IV of ch. 49 or if the
court determines that it can be reasonably anticipated that the other party
in the action will apply for medical assistance under subch. IV of ch.
49 within 30 months of the stipulation. Section 767.10.
Property division:
(1) Upon every judgment of annulment, divorce or legal
separation, or in rendering a judgment in an action under s. 767.02 (1)
(h), the court shall divide the property of the parties and divest and
transfer the title of any such property accordingly. A certified
copy of the portion of the judgment that affects title to real estate shall
be recorded in the office of the register of deeds of the county in which
the lands so affected are situated. The court may protect and promote
the best interests of the children by setting aside a portion of the property
of the parties in a separate fund or trust for the support, maintenance,
education and general welfare of any minor children of the parties.
(2) (a) Except as provided in par. (b), any property shown
to have been acquired by either party prior to or during the course of
the marriage in any of the following ways shall remain the property of
that party and is not subject to a property division under this section:
2. By reason of the death of another, including, but not
limited to, life insurance proceeds; payments made under a deferred employment
benefit plan, as defined in s. 766.01 (4) (a), or an individual retirement
account; and property acquired by right of survivorship, by a trust distribution, by bequest or inheritance
or by a payable on death or a transfer on death arrangement under ch. 705.
(b) Paragraph (a) does not apply if the court finds that refusal
to divide the property will create a hardship on the other party or on
the children of the marriage. If the court makes such a finding,
the court may divest the party of the property in a fair and equitable
manner.
(3) The court shall presume that all property not described in sub.
(2) (a) is to be divided equally between the parties, but may alter this
distribution without regard to marital misconduct after considering all
of the following:
(L) Any written agreement made by the parties before or during
the marriage concerning any arrangement for property distribution; such
agreements shall be binding upon the court except that no such agreement
shall be binding where the terms of the agreement are inequitable as to
either party. The court shall presume any such agreement to be equitable
as to both parties. Section 767.255.
Case Law:
The law is well settled that a marital property agreement is equitable
if it satisfies all of the following requirements:
If an marital property agreement fails to meet any one of these
requirements it must be invalidated. Gardner v. Gardner, 190 Wis.2d
216 (Ct.App. 1994) 527 N.W.2d 701.
