What Consistutes Equal Property Division?

Throughout a marriage couples accumulate items with monetary value. With the process of dividing marital property and debt, it can be a source of frustration, anxiety, and grief. When dividing assets, it may seem uneven, however, there is a system in place to make it as fair as possible.

All matters of property division is at the sole discretion of the court. Also, equitable distribution does not always mean equal distribution. Your individual circumstances, as well as other factors, will come into play when a court renders its decision. With that being said, there really is no way of knowing whether a court would grant your request. The court will look at numerous aspects when rendering a final decision. One thing to understand is that, during a divorce, the court aims to dissolve the marriage while awarding each party an equitable share of the marital property.

As discussed in Parrett v. Parrett, 146 Wis.2d 830, 432 N.W.2d 664 (Ct. App. 1988),[1] equal property division occurs only where the principal asset resulted primarily from one party's efforts. Courts will look at businesses and attributions within the marriage, but there is a heavy weight when the business begins from within the family and who puts the majority of the work into it.

In the case of Herdt v. Herdt 152 Wis. 2d 17, 447 N.W.2d 66 (Ct. App. 1989),[2] the wife had also requested a share of her husband's civil service pension benefits. The court denied her a share of the benefits with current pay status, but granted her 50% of the survivor share benefits. She appealed, but the court of appeals affirmed. This was based on the court's translation of section 767.255(8), which permits a trial court to hand down an unequal distribution of marital property in regards to an award of maintenance.

When Is Property Division Not Equal?

The court will look at numerous aspects when rendering a final decision. One thing to understand is that, during a divorce, the court aims to dissolve the marriage while awarding each party an equitable share of the marital property.

In a hypothetical scenario: the issue may lie in the fact that, if you are awarded 50% of the marital estate plus support and maintenance, your husband may, mathematically, receive a less than equitable share overall. One way it could play out is that the court might possibly award a 60-40 split. This would give you 40%, but with support and maintenance which would balance it out. This was seen in the case of Parrett v. Parrett 146 Wis. 2d 830, 432 N.W.2d 664 (Ct. App. 1988). In this particular case, the wife was awarded 40%. However, this was also accompanied by maintenance and support. By doing it this way, the court balanced the overall equitable outcome.

Is It Wise to Appeal the Trial Court's Division of Property?

It is important to know that appeals can be costly. However, it may be worth it. One point to know is discussed in Laribee v. Laribee, 138 Wis.2d 46, 405 N.W.2d 679 (Ct. App. 1987).[3] A trial court has broad discretion in the valuation and division of retirement and pension rights. This court will affirm the valuation if the trial court considered the relevant facts and its conclusion is not clearly erroneous. Future taxes clearly impact on the present value of retirement plans.

If We Are Both Financially Equal, Would I Have to Pay Maintenance?

This award is primarily given to ensure financial equality and to enforce marriage obligations in the event of marital dissolution.

A pension plan is another story. To ensure equality, the courts may give you both interest in each other's pension funds. This was demonstrated in the case of Kennedy v. Kennedy 145 Wis. 2d 219, 426 N.W.2d 85 (Ct. App. 1988).[4] In this case, the divorcing parties were also financially comparable to one another. The court originally awarded maintenance to the wife, and gave both partners equal interest in each other's pension funds. The husband appealed. The court of appeals affirmed the pension interest, but reversed the maintenance.

Can the Court Render a Final Decision on Property Division Even If My Spouse Is Not Present?

There are several things the courts may consider when reviewing this case. There are also a number of ways this could play out. One scenario could be that the appellate court may find that the hearing should have been continued.

Your scenario could play out like the case of Poncek v. Poncek, 121 Wis. 2d 191, 358 N.W.2d 539 (Ct. App. 1984).[5] A similar situation had occurred where the husband insisted on a date, then did not show. He also appealed the courts decision based on the fact that he did not receive an order to appear. The court of appeals affirmed the trial court's decision based on the fact that he is the one who insisted on the date.

When Will the Court of Appeals Overturn a Trial Court's Division of Property?

As discussed in the case Mathewson v. Mathewson, 135 Wis.2d 411, 400 N.W.2d 485 (Ct. App. 1986), [6] the court of appeals will not find an abuse of discretion if the record shows that the trial court exercised its discretion and that there is a reasonable basis for the court's determination. Discretion contemplates a process of reasoning which yields a conclusion based on logic and founded upon proper legal standards.

Am I Entitled to Benefits Currently in Pay Status?

All matters of property division is at the sole discretion of the court. Also, equitable distribution does not always mean equal distribution. Your individual circumstances, as well as other factors, will come into play when a court renders its decision.

In the case of Herdt v. Herdt 152 Wis. 2d 17, 447 N.W.2d 66 (Ct. App. 1989), the wife had requested a share of her husband's civil service pension benefits. The court denied her a share of the benefits with current pay status, but granted her 50% of the survivor share benefits. She appealed, but the court of appeals affirmed. This was based on the court's translation of section 767.255(8), which permits a trial court to hand down an unequal distribution of marital property in regards to an award of maintenance.


References: [1]Parrett v. Parrett (1988), [2]Herdt v. Herdt, [3]Laribee v. Laribee (1987), [4]Kennedy v. Kennedy (1988), [5]Poncek v. Poncek (1984), [4]Mathewson v. Mathewson (1986)


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