Property Division: Basic Rights and Duties

Property division is probably one of the most contested aspects of any divorce next to child custody and support. It is difficult for some to have to part with something they feel they personally earned during the marriage. Sometimes, one party simply does not want the other to have the satisfaction of getting something out of spite. In any event, property division is a matter of law and is at the discretion of the court as to how it will be divided. Contesting these decisions is your right, but may result in a lengthy and expensive divorce.

The intent behind property division laws and statutes is to essentially advocate for the stability of the family after its dissolution. Its aim is to recognize the contributions of each party during their marriage, and to uphold the contract of marriage regardless of its dissolution. It is the equal responsibility of both parties to understand that just because they have decided to end the marriage, this decision does not allow them the right to forfeit their responsibilities to their spouse and/or children. This is also dependent upon which spouse has the ability to contribute a greater share, and which is in need of financial or other methods of support.

An excerpt from statute 766.97 states, “Women and men have the same rights and privileges under the law in the exercise of suffrage, freedom of contract, choice of residence, jury service, holding office, holding and conveying property, care and custody of children and in all other respects.” This statement reflects the court's intent on remaining unbiased during the process of deciding, as well as their final decision in regards to matters of divorce, among other things.

Statute 766.15 which covers the responsibility between spouses states, “(1) Each spouse shall act in good faith with respect to the other spouse in matters involving marital property or other property of the other spouse. This obligation may not be varied by a marital property agreement. (2) Management and control by a spouse of that spouse's property that is not marital property in a manner that limits, diminishes or fails to produce income from that property does not violate sub. (1).” These statements signifies that a disclosure must be made to the other which clearly states all matters of finances and property. It will then be certified by the court whether property is considered divisible, or not.

However it is also stated in section 766.17; Variation by marital property agreement, “(1) Except as provided in ss. 766.15, 766.55(4m), 766.57(3) and 766.58(2), a marital property agreement may vary the effect of this chapter.” This explains that prior agreements in regards to property can change the outcome of the property division settlement.

The actual division of marital property hinges on several aspects. Some of these aspects are whether the property was gifted to one spouse, inherited by one spouse, whether this property was used by both in a joint fashion, to whether the property was filed under both spouses names. Despite these variables, by understanding your rights and obligations concerning property division you stand a better chance of obtaining your fair share of the property.


References: Property Division By State


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