What is Non-Marital Property in Wisconsin?
Non-marital property is not divided by the Wisconsin family divorce court. In Wisconsin, non-marital property includes:
- Property that a spouse owned prior to the determination date. Again, typically the determination date is the marriage date.
- Debts that a spouse had prior to the marriage date
- Property that a spouse received by gift – before or after they were married. Gifts must be from someone other than your spouse.
- An inheritance received – before or after the marriage date
- Property either spouse obtains after they separate from each other
Proving Non-marital Property in Court
Wisconsin presumes that all property is marital property. To prove that property is non-marital, a spouse must have records such as a bill of sale to prove they acquired the property before the determination date. The same logic, the need for a record, applies to non-marital debts.
Non-marital property is also called “separate” property.
Can non-marital property become marital property?
If the non-marital property is used by the couple during the marriage, then the property will switch categories. Non-marital property that is commingled becomes marital property.
For example, if you buy a car before you get married but use marital funds to pay off the loan, then the car becomes marital property and the value must be included in property division.
If you had a personal checking account worth $10,000 prior to the marriage, then:
- If you keep the personal checking account and don't add any funds to it during the marriage, you can likely claim the $10,000 as non-marital property.
- If you close out the account and put the funds into a joint account with your spouse, your spouse and you will split the $10,000.
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.
Can marital property agreements or prenuptial agreements protect marital property?
Generally, the answer is yes. In a prenuptial agreement, two people can agree before they marry how their property will be classified – if they get divorced. This means they can;
- Identify property and debts they already have.
- Agree that the identified property is non-marital or marital.
- Agree that commingling the assets does (or does not) change the status of the property from non-marital to marital.
- Agree how each item of property (and debt) will be handled if they get divorced.
Prenuptial agreements are also called premarital agreements.
The safest way to protect your property is to consult with an experienced Wisconsin family lawyer – either before you get married or as soon as you think the marriage is over. Prenuptial agreements can be modified, with a lawyer's help, during a marriage. Spouses can also agree not to use their prenuptial agreement during the divorce process.
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