Is Wisconsin a 50/50 State for Divorce?

Wisconsin is considered a community property state. This means that all marital property will be divided 50/50 in the event of divorce, legal separation, or annulment. Separate property that was a given as a gift to each spouse or property inherited by each person is excluded from the 50/50 division.

How is Property Divided In a Wisconsin Divorce?

Marital property is divided equally between between the divorcing party in WI. 50/50 division applies in the event of divorce, legal separation, or annulment. Separate property that was a given as a gift to each spouse or property inherited by each person is excluded from the 50/50 division.

In the event of a divorce property can be divided in a two different ways:

  • By an agreement between the two parties
  • In court

If an agreement is reached between the parties, the court is likely to sign off on it as long as it is fair and equitable. If the parties have to go to court, the court will likely divide property equally between the parties.

Although Wisconsin courts favor the equal distribution of marital assets, the following factors are taken into consideration and may cause the court to distribute property differently:

  • The length of the marriage.
  • The property each spouse brought into the marriage.
  • Substantial assets not subject to division by the court (e.g., substantial separate property, such as a large inheritance).
  • Ages,physical, and emotional health of the spouses.
  • Each spouse's contributions to the marriage.
  • Each spouse's earning capacity (the ability to earn income based on education, job history and skills, and local employment opportunities).

Here is some information on some of these topics and how they can affect the distribution of marital property.

Does the Marriage Duration Change How Property Will be Divided?

Although Wisconsin is a 50/50 state, the court maintains discretion to deviate from presumed equal property division under s. 767.61, after considering all the factors listed under the statute.

The most significant factors considered under this statute would be the length of the marriage and the property brought into the marriage by each person. For short-term marriages (5-7 years) it is likely that the parties would be restored to their pre-marital assets. Assets acquired together during the marriage, or the value of the assets, would be divided between the parties.

For a long-term marriage (20 years or more), it is less likely that the court will restore the parties to the assets brought into a marriage after two decades have passed.

There is a middle area between short and long term marriages. The outcome of your divorce can vary depending on if your marriage is closer to being short-term or long-term. If your marriage is closer to being short-term there is more of a chance that you can convince the court to leave premarital assets undivided.

Legal Agreements Before and During the marriage

Prenuptial agreements affect property division. Wisconsin has constituted the Uniform Premarital Act.
If both parties sign a prenuptial agreement that awards sole ownership of a property to one spouse, that property can no longer be divided upon divorce.

Prenuptial agreements can be modified during the marriage via additional property agreements. This must be signed by both parties.

If you don't have a prenuptial agreement you can still protect property during marriage. To do this you must be sure not to pay off personal debts with marital funds. If you want to make a large purchase such as a car or an above-ground pool, use money from a separate bank account or other personal funds. Keep records of how you pay for these items.

If both spouses choose to, they can get rid their prenup during the divorce and enter into terms that are different than those contained in their premarital agreement. If they decide to do this, the new terms need to be included in a marital settlement agreement or property settlement agreement as part of their divorce.

Separate Property Gifts and Inheritances

The only property that is exempt from equal property division, is property acquired by gift or an inheritance from a third party. On occasion, the court will divide a gift/inheritance for “equitable reasons” but that is a fairly unusual.

This comes into question when inherited or gifted funds have been “co-mingled” into a marital asset. If the funds were deposited into a joint account or were used to purchase a marital home, funds have converted into a marital asset. When going through a divorce it is common for an individual to want a gift or inheritance back.

The law states that, in this situation, there must be “donative intent” on the part of the spouse who received the inheritance. This means that there must be evidence that the spouse wanted to give the inheritance to the marriage or to the other spouse.

Gifts exchanged between the two parties during their marriage are generally divided equally.

Assumed Debt

Although it is important to know how property is divided during a divorce one should also keep in mind that property isn't the only thing that needs to be divided. Debts, such as mortgages and credit card balances are also divided in a divorce.

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