How Courts Divide Property in Wisconsin
Wisconsin is a marital property state, which means everything owned by the married parties is owned equally by both parties and therefore should be distributed equally at the time of divorce. The details of the property rights of married persons can be read under Wisconsin Statute Chapter 766.
This equal ownership law applies to both assets as well as secured and unsecured debts. One of the main reasons to hire an attorney during a divorce is to protect assets and limit debt liability where possible. Property division is a vast, complex network of laws, but when applied appropriately can limit some significant losses and/or exposure to some debt. But again, the courts start from the presumption that everything will be divided equally between the parties.
To divide property, assets and debts equally the court requires parties to document and develop a property division worksheet. This worksheet will value all assets and debts. The goal is to come up with an equitable division of assets to each party.
Start Dividing Property & DebtsGet your WI property division worksheet here. Document property, assets, and debts. Think through how you want to equalize your property division, and avoid a lengthy battle in court.
There are specific provisions to protect assets and or limit exposure to debts brought into the marriage. We work with clients to apply these protections or negotiate with the other party to protect our client's interests. We do this by classifying assets and debts into two types of property marital property and separate property.
Court Considerations when Dividing Property
As discussed in the overview section, to divide property during a Wisconsin divorce, a distinction needs to be made between separate and marital property. In general, Wisconsin is a community property state, meaning Wisconsin courts divide property equally, or as equally as possible, between parties getting a divorce regardless of specifics of ownership.
Since an equal division of property cannot always mean a perfect 50/50 split, courts will aim to decree property distributions leaving both sides with a similar amount of assets and debts. However, at times courts can deviate from a 50/50 distribution of assets after considering other factors:
- the length of the marriage
- the property brought into the marriage
- whether a spouse has substantial separate assets
- the age of the spouses
- the physical and emotional health
- contributions to the marriage, such as an economic value associated with homemaking/child rearing
- earning capacity of each spouse
For example, a court may award the marital home equity to a spouse with a lower future earning capacity because they gave up an education, training, and or a career with the intent of supporting the other spouse's education and or career advancement.
Prenuptial Agreements & Property Division
Prenuptial agreements, also known as premarital agreements or prenups, will impact property division under certain circumstances.
Wisconsin is one of 27 states to adopt the Uniform Premarital Agreement Act, which means when a valid prenuptial agreement is present and signed by both parties, certain property will be awarded solely to one spouse and is no longer marital property.
The Marriage Property Act
In Wisconsin, the Marital Property Act was signed into law in 1984 and took effect in 1986. The purpose of the law was to change how marital property is viewed during the division of property stage of a divorce proceeding.
The law recognizes both parties contribute to a marriage – this is true even if only one earns a salary. This recognition says, with limited exceptions, whatever the couple acquires during the course of the marriage should be considered owned equally.
Individual Property in Wisconsin
Even with the introduction of the Marriage Property Act, Wisconsin still recognizes individual property rights during a marriage. Specifically, a personal gift or inheritance – no matter when they are received, should be considered individual property during the time of divorce. The catch here is the court demands clear record of proof the item or property belongs solely to one party.
Warning! – Individual Property can become Marital Property
Where the law becomes gray and convoluted is how individual property, or separate property, can become marital property.
Say for instance before marriage you have a 401k account with $30,000. During the course of a 15-year marriage, you grow the 401k account to $250,000. During the fifteenth year of marriage, your spouse decides it is time to split. This 401k account would be determined partial marital property, but the exact amount of the account to be considered individual property is far from exact.
References: Wisconsin Statute Chapter 766