State Rep. Joel Kleefisch doesn't like divorce, and he doesn't like prenuptial agreements. But he's proposing a bill that would make such agreements ironclad, even if they are entered into fraudulently.
And that made for some acrimonious debate a couple of weeks ago when the Assembly Judiciary and Ethics Committee considered the bill. It's unclear how much support the proposal has. Kleefisch, R-Oconomowoc, has lined up only one co-sponsor: Rep. Joe Knilans, R-Janesville. The bill has yet to be scheduled for a committee vote.
AB 235 would prevent a judge from altering prenuptial contracts, which is currently done when one of the spouses fails to disclose assets or debt, the agreement was coerced, or if the judge deems the agreement to be unfair.
"The bottom line is right now, there's too much stretching by judges," Kleefisch said at a public hearing on the bill. "There's too much opportunity for someone to victimize in a situation where they see somebody who has a great amount of assets, wanting to marry them and (getting) a good attorney later and have the prenup changed."
Kleefisch said he had thought the bill would sail through the hearing, until he realized there were three attorneys on the committee. Two of them maintained that his bill would make it easier, not more difficult, to victimize a spouse.
"It's pretty simple contract law that you set aside an agreement that was entered into falsely," said Rep. Tony Staskunas, D-West Allis, an attorney. "You're undoing that."
Kleefisch, a former television reporter, left some on the committee shaking their heads when he suggested that people victimized by a spouse deserve what they get.
"It's caveat emptor in this case," he said. "Obviously, someone entering upon a prenuptial agreement should be consulting with an attorney."
Couples who plan to get married often enter into prenuptial agreements to ensure a fair distribution of assets in the event of divorce. With half of all marriages meeting such an end, most experts and lawyers claim that the number of couples entering into such contracts is increasing, although because the agreements are not required to be publically disclosed, there are no statistics to bear that out.
Often the agreements are sought by spouses heading into their second marriage as a way to make sure children from a previous marriage are provided for.
The agreements generally require that both parties disclose their financial assets and debt. When they don't, a judge can alter the agreement under current law. Kleefisch's proposal would bar a judge from doing that.
"What you're doing is you're protecting the party that fails to disclose and not giving the judge or a court the ability to enact equity between the parties," said Rep. Gary Hebl, D-Sun Prairie, an attorney whose law firm counts prenuptial agreements among its services. "You're saying that if you fail to disclose an asset, that's a benefit to you."
But Kleefisch defended the proposal as a way to keep spouses from pulling a fast one.
"Unfortunately today we often see people marrying for money or for other notorious purposes rather than love, if you will," Kleefisch said. "So I brought this bill forward to say that if someone enters into a premarital agreement, that is binding in the courts so someone doesn't have the motive to marry someone based on money and based on the fact that they can get a good attorney such as Rep. Hebl to come in later and change the prenuptial agreement in bad faith."
Kleefisch said he decided to propose the bill after hearing from "more than one" constituent who had entered into a prenuptial agreement, then when they got divorced a judge changed it.
"They believe they were treated unfairly, and after taking a look at it I tend to agree that a prenuptial agreement should be binding," he said.
During the debate over the bill, Hebl increasingly began to take on the appearance of a man who was beating his head against a wall. Here's one exchange:
Hebl: "If a person does act in bad faith, there's no question that their action is protected by this law."
Kleefisch: "Which is why someone entering into a prenuptial agreement should be very careful."
Hebl, visibly shocked: "Well my God."
Hebl went on to say of the bill: "It justifies illegal, immoral, unfair behavior."
Kleefisch offered to discuss an amendment that would penalize a spouse for failing to disclose financial information. But Hebl rejected the notion.
"Remember that statement about lipstick on a pig?" Hebl said. "Sometimes there's just nothing you can do to a bill to make it viable."