Property Division

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, BrookfieldMadison & 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.

Exempted Property from Division

Property may be considered individual property of a party and not subject to division if it was:

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.
Does retirement account interest get split in divorce?
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?
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.


Contact the family law lawyers at Divergent Law today to schedule a free consultation. Our experienced attorneys will put your self-interests first.

When a couple decides to end their marriage, the legal action can take multiple routes. If they are able to come to an agreement about all of the required details, including division of assets, child custody, placement, and alimony, then they can apply for an uncontested divorce.

In many cases, property division and child custody are emotional decisions to make. Divorce mediation or a court proceeding may be the only way to reach a mutual agreement. A collaborative divorce occurs when the two parties are able to finalize a divorce through negotiation or mediation. A contested divorce occurs when the parties cannot reach an agreement, in which case the divorce case must go to trial and a judge will rule a final, indisputable hearing.


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Child Custody

It is important to remember that no matter what a parent wants for the outcome of a custody case, any final decision will be made with regards to the child’s best interests before any other factors are taken into consideration.

The term “custody” is often used as a general term regarding the amount of time that a child will spend with each parent or guardian, as well as the degree of legal power each parent or guardian has over decisions relating to the child’s life, such as medical treatments, religious and educational preferences, and more. However, Wisconsin separates these decisions into two areas, “custody” and “placement.” Custody refers specifically to the legal right that a parent has in decisions regarding the care and upbringing of the child. Custody can be either shared or sole, depending on the court's decision.


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Placement refers to the arrangement between parents or guardians regarding how the child’s time is shared between the two parties. The child’s welfare is the primary consideration when the judge makes the final decision. Placement can be designated as primary, shared, or split. Primary placement is granted to the parent or guardian that the child spends the most time with. Shared placement refers to each parent dividing the amount of time the child spends with them. Split placement is a third option when multiple children are involved. Each child receives his or her own specific schedule.


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Child Support

In order to ensure that the child support payments are fair, the judge will explore all of the relevant details, such as the income and financial stability of each parent, as well as which parent will have the majority of the financial responsibility for the children.

Child support payments may be required until the child turns 18, or there may be other circumstances that extend the payments beyond their 18th birthday depending on the child's needs. Parents can also request for their child support agreement to be reevaluated in court. To see an estimate of your monthly child support payments, use our Wisconsin child support calculator.


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Alimony is often confused for child support, and while each involves a payment going from one spouse to the other, the similarities end there. Alimony is a payment that is made from the most-financially stable spouse to the dependent spouse for a set period of time. These payments are intended to give the dependent spouse an opportunity to adjust to their life without the ability to rely on their spouse’s income.

Alimony payments are determined by the current financial circumstances of each spouse. The agreement can always be renegotiated if one of the parents goes through a major income change. In particular, if the recipient of the alimony remarries, they may lose the spousal support payments. The terms of the agreement are clearly outlined by the lawyers or judge.


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Father's Rights

In situations involving unwed parents, the father may find that they have very few legal rights over their child. In these cases, it is especially important for the unwed father to partner with a family lawyer who can help him navigate his situation.

In addition to issues strictly pertaining to legal rights over a child, father’s rights also include issues like paternity tests, contesting adoptions or custody-related decisions, visitation, or instances where the father would like to terminate their rights. No matter the problem, if you need legal help as a father, we're here to help.


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Wisconsin Family Law & Divorce Attorneys:
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