How Property is Divided in a Wisconsin Divorce
Wisconsin is a “community property” state, which means any property that has been acquired (by either party) prior to or during the course of the marriage is considered marital property, even if it is not titled in both names. Either one or both spouses may own the marital home. Regardless of which spouse is the titled owner of the marital home, each spouse has a one-half interest in the home and has the same right to use and reside in the home. This right can be varied by court order or contract.
When dividing your property and debt, the court begins with a presumption to equally divide all assets, debts and liabilities. Property includes but is not limited to real estate, vehicles, retirement accounts and pensions, personal belongings, debt, bank accounts, recreational toys, animals, etc.
Does ALL property get divided?
While the law presumes all property is communal property, the parties often negotiate the division of the assets acquired during the marriage and exclude their premarital assets as their individual property. However, an argument can be made that the premarital interests are so commingled with marital assets that they have lost their individual interest and have become all marital. Such an argument requires a careful review of the facts and the help of an experienced attorney.
Factors that Influence Property Division
Wisconsin Statute Section 767.61(3) provides factors for the courts to consider when property is not being equally divided.
- The length of the marriage.
- The property brought to the marriage by each party.
- Whether one of the parties has substantial assets not subject to division by the court.
- The contribution of each party to the marriage, i.e. amount of the party’s income spent on bills, groceries, childcare services, etc.
- The age and physical & emotional health of the parties.
- The contribution by one party to the education, training or increased earning power of the other.
- The earning capacity of each party.
- The amount and duration of maintenance payments to either party.
- Other economic circumstances of each party.
- The tax consequences to each party.
- Any prenuptial agreement made by the parties before or during the marriage.
Exempted Property from Division
Property may be considered individual property of a party and not subject to division if it was:
- Gifted from someone other than your spouse
- Acquired via your family inheritance
Ultimately, the court may need to decide if the property is to be excluded from division in the marital estate based on when the asset was gifted or inherited. Excluded property is deemed individual property.
Property Division FAQ
If I started a business during the marriage, will it be divided too?
Yes, if you start a business during the marriage, a court may consider the value of the business, including assets and receivables, as marital property. Your spouse may receive part or even half of your business in a divorce. Since it may be difficult to physically divide a business, a court may allocate another marital asset that is equal to the value of your business. The court may also order assets from the business to be paid to the ex-spouse.
Is my retirement fund still mine?
Under Wisconsin law, all assets brought to the marriage or acquired during the marriage are considered marital property. Retirement funds are included in assets that can be divided.
When gathering all the asset and debt information in your marital estate, it is often a balancing act in determining who will keep which assets and debt. If you have enough assets that are equal in value to your retirement account, then your spouse could opt to receive those assets, and you could keep your retirement account.
What if my retirement account began before my marriage?
If you have any pre-marital interest in your retirement accounts, you can certainly negotiate with your spouse to exclude your pre-marital interest from the marital assets being divided. You will need to gather records indicating the value of your account at the time of the marriage to verify your pre-marital interest. You should note that the court is not required to grant you any premarital interest.
Property and debt division is final with the Judgment of Divorce. If you come to an agreement with your spouse, but decide a year later that it seems unfair to you, you will not be able to go back to court and ask the Judge to re-evaluate the division of property or debt, outside of limited exceptions where you can prove fraud or mistake of law. Before you sign any agreement, contact an experienced attorney to make sure you are making an informed division in your best interest.
Do I need to disclose all my assets to my spouse?
Under Wisconsin law, each party must complete a financial disclosure statement when going through a divorce that requires them to identify their income, expenses, assets, and debts to the court and to each other. The statement is submitted to the court as a trued and accurate disclosure. Hiding assets or failing to disclose all your assets is considered fraud in Wisconsin and if proven, you could be subject to perjury charges.
What should I do if my spouse is hiding assets?
If you believe your spouse is hiding assets, our attorneys could help you investigate public records to find evidence. Keep track of your bank account records, credit card statements, and previous tax statements. Furthermore, you can demand documents and information from your spouse with a formal request.
Finally, if you have a significant estate, you may want to consider hiring a forensic accountant. A forensic accountant could analyze financial records to determine if any hidden assets may exist. Divergent Family Law attorneys have experience with High Net Worth Estates.
Who keeps the pets in a divorce?
In a Wisconsin divorce, animals are considered property to be divided. If you proceed to trial, the animal will be given to one party or the other. The court will not order a “placement” schedule for animals. Pet ownership is dictated by the surrounding facts and circumstances of your case.
How to fight for your pets
If you are battling over ownership of your pet at trial, make sure to bring evidence of who provides primary care of the pet, who has more available time, and who has the greater means to provide for the pet. Evidence that the pet was a gift to you is also a good strategy for gaining ownership of your pet.
While the courts may approve an agreement of the parties to do a shared placement schedule of the animals, it will likely do so with the warning that the court views the animals as property. Upon any disagreement, the court may allocate the animal to one party or the other.
Who keeps the rings in a Wisconsin divorce?
It depends. Many people try to argue the ring was a gift, but under Wisconsin law, gifts between the parties are considered to be marital property. Wedding rings are subject to Marital division in a divorce.
What if the ring was an engagement ring?
If the ring was an engagement ring given before the marriage, you could argue that the ring is a premarital gift and not subject to division. However, if your engagement ring is soldered together with the wedding ring as one piece, and they become one piece, you could argue the ring is marital property.
If original engagement/wedding rings were lost and you purchased new ones during the marriage, they too become marital property subject to be divided. If the parties come to an agreement as to who keeps the ring, the court will honor the agreement.
How is debt divided under Wisconsin divorce law?
Under Wisconsin law, all marital assets and debts are subject to be divided in a divorce. Marital debts are debts that were incurred during the course of a marriage. These debts include mortgages, car loans, credit cards, student loans, and even taxes. The court may sometimes require one party to pay off more debt because they will be receiving greater assets.
The court has the authority to order one or both parties to pay off any marital debt, even if the purchased asset only benefitted one party. For example, if a husband takes out a loan to purchase a car during the marriage and later defaults, the wife may be liable for the debt even if she never drove the car. Sometimes one party may have hidden debts that the other party did not know exist. The court could still make both parties responsible for paying off the hidden debt.
Am I responsible for my ex's student loans?
Generally, if the student loans were taken out before marriage, they would be considered individual property. If the loan was taken out during the marriage, however, you could be liable for your spouse's student loan debt. If your spouse took out loans for the purpose of supporting your family, the loans have a higher likelihood of being considered marital debt. A court will look at many facts and perform an economic analysis when ruling on the division of student loan debt in marriage.