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.
Settle property division amicably with your spouse
When spouses are able to come to agreements about property division together then divorce mediation is a faster and less expensive alternative to a traditional divorce. Our divorce-mediation certified attorney, Trisha Festerling, will facilitate constructive discussions between you and your spouse to come to agreements about every aspect of your divorce. You both will have control over every decision & the results will be completely confidential. Trisha offers divorce mediations in all five of Divergent's offices in Milwaukee, Glendale, Brookfield, Madison & Appleton.
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
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.
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.
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.
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.
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.
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.