A Basic Guide to Inherited Property Division

It is sometimes confused that in Wisconsin, all property and debts will be divided evenly and equally. Sometimes, depending on the specifics of the case, it can happen. Although, most often, it is not the case. There are numerous elements which factor into a court's decision when it comes to property and debt division.

These elements can include the duration (length) of the marriage, the property brought into the marriage by each individual, whether or not either party has property that is not subject to division, each individuals personal contribution to the marriage, whether or not one party has primarily dedicated their time to child care or homemaking, each individual's age and/or health, educational contributions, each individual's earning capacity, and other economic or specific matters that would factor into a court's decision.

As far as one spouse having the majority of the assets, property, or debt in their name – it really has no effect on the division. To an extent. Wisconsin law already predetermines that each spouse does, in fact, have a 50% interest in every bit of property (and debt) obtained during the marriage. The main point of exception is in regards to inherited property[1]. The exception to the exclusion of inherited property depends on how the inherited property was handled. If cash was inherited, but then deposited into a marital, or joint, account – it is probably excluded from its non-division status.

In regards to the value of property during division or liquidation, most often, the court will appoint someone to appraise the property. This process alleviates disputes between spouses as to the value of certain properties.

Pensions and/or retirement funds are, again, usually considered to be owned 50/50 by both parties. Unless there are elements which dictate further consideration, the court will automatically award each party 50% of a pension or retirement fund. In most situations, a QDRO, or Qualified Domestic Relations Order, must be filed in order to put the division into effect. In cases of state, county, or military pensions, a QDRO is not required. Although other specialty forms may be.

In the event that disputed property concerns property that was owned before the marriage, unfortunately in most cases, it is subject to division. There are ways to circumvent this presumption by the court's consideration as to the contributions made by each party. This is usually sought in cases where the marriage was shorter than two years, or when one party brought very significant property, money, or debts into the marriage. In any case, the court will consider all factors when rendering a decision.
If property division seems complicated to you, contact an experienced family law attorney to make sure your rights aren't being ignored.

Will the Court Award Interest on Installments From the Property Division?

In property division matters, the court actually maintains full discretion.

This matter has been brought before the courts on many occasions. In the case of Overson v. Overson 140 Wis. 2d 752, 412 N.W.2d 896 (Ct. App. 1987)[2], the wife sought interest on the payments because they were to be paid in 11 installments. The court of appeals instructed the trial court to explain why it had failed to explain why it did not award interest. The trial court stated that it held full discretion on the matter and that, among other reasons, the wife's attorney did not request it.

References: [1]How Inheritance is Handled in a Divorce, [2]Overson v. Overson (1987)

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