The Debate of Property Division

Many feel that certain property rights should remain exclusively their property. This is most always not the case. This, although may seem illogical or unfair, is actually an attempt to distribute property evenly among the divorcing parties.

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[1]​ 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.

Property division, though logically sound, may tend to invoke the question of constitutionality. Any statute that drastically changes the definition of the ownership of property, such as the act of marital distribution, tends to generate debate among the parties involved. Many feel that certain property rights should remain exclusively their property. This is most always not the case. This, although may seem illogical or unfair, is actually an attempt to distribute property evenly among the divorcing parties. The definition of marital distributable property is done through first establishing the identity and character of the property in and of, itself.

Two provisions of the Act have garnered particular attention because they impact vital property rights that were in place prior to the Act's effective date. The first provision includes aspects of income earned or accrued following the Act's effective date in regards to property obtained pre-effective date. The second provision has to do with deferred marital property regulations and standards. To date, there has never been a documented case which challenges the constitutionality of the Act.

The general problem is when there is a legislative change in the rights to property between the divorcing parties can sometimes be seen as taking property from one person, and transferring the vested right to possess, use, dispose, and/or otherwise enjoy said property, to another. The validity becomes an issue, however, in whether a retroactive distribution is either without due process, or if it violates the Privileges and Immunities Clause of the 14th Amendment[2], or whether it is justified within the police power of the state when it comes to the regulation of the marriage, distribution of marital property upon dissolution of the marriage, or even the devolution of property at death.

When it comes to deferred property, the Wisconsin Court of Appeals holds that under the US Constitution, there is no right to dispose of property by will. Although, there are many Wisconsin court decisions that have demonstrated that Wisconsin residents do, in fact, have that right under the Wisconsin constitution. These findings are based on article I, section 1 of the Wisconsin Constitution, which states, “all people are born equally free and independent, and have certain rights; among these are life, liberty and the pursuit of happiness….”

Although, the right to will has been demonstrated to be subject to regulation by the legislature. The granting of an elective right to take a portion of a deceased spouse's estate is considered a reasonable regulation of one's inherent right to dispose of their property in regards to a will. Debatably, under former sections 861.02 and 861.03 and provisions under current chapter 861[3], which were created to replace the elective right in sections 861.01-.05, the same thing is true for the elections provided a surviving spouse.


References: [1]Statue 766.15, [2]14th Amendment, [3]Chapter 861


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