Dividing Property in Wisconsin

How Can Couples Divide Their Property in Divorce?

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When Wisconsin couples consider divorce, one of the first questions they ask is: “Who gets what?” The short answer is, it depends.

How Can Couples Divide Their Property in Divorce?

When Wisconsin couples consider divorce, one of the first questions they ask is about property: “Who gets what?” The short answer is, it depends.

First of all, it’s important to understand what gets divided in a divorce. Property division encompasses much more than figuring out what to do with the family home. Rather, the division of property in divorce can involve a variety of assets, such as a home, cars, retirement benefits, bank accounts, stocks and stock options, a baseball card collection, furniture, art, and the wedding china. And, don’t forget you’ll have to consider debts, such as mortgages and credit card balances.

Property can be divided one of two ways: by agreement between the divorcing couple, or by a court. If divorcing spouses reach their own agreement on how to divide their property, a court will usually sign off on the agreement, so long as the division is equitable (fair) or reasonable.

Couples that can’t reach an agreement will probably end up in court, where a judge will decide how to divide their property. It’s important to understand how courts make these decisions in Wisconsin.

What do Courts Consider When Dividing Property in Divorce?

In order to divide assets in a Wisconsin divorce, an important distinction must be made between “separate” and “marital” property.

Separate property

“Separate property” is not subject to division, which means that spouses get to keep their separate property after divorce. Separate property includes, but is not limited to, the following:

  • gifts received from a person other than the spouse
  • an inheritance
  • any property owned by either spouse prior to the marriage, and
  • property received after separation.

Marital property

By contrast, “marital property” is subject to division between spouses in a divorce. This includes all property acquired by one or both spouses during the marriage, using marital funds.

Wisconsin Courts Divide Property Using Community Property Principles

Wisconsin is a community property state, which means that Wisconsin courts divide marital property equally between divorcing spouses. Although equal division of property does not always mean an exact 50/50 split, Wisconsin courts generally try to order property distributions that leave the parties with the same amount of assets and debts.

Generally, Wisconsin courts favor an equal division of marital property. However, a court may deviate from an equal distribution of assets after considering several factors, including:

  • the length of the marriage
  • the property each spouse brought into the marriage
  • whether either spouse has substantial assets not subject to division by the court (e.g., substantial separate property, such as a large inheritance)
  • the spouses’ ages and physical and emotional health
  • each spouse’s contributions to the marriage, giving appropriate economic value to any homemaking and child care services either spouse provided during the marriage, and
  • each spouse’s earning capacity (the ability to earn income based on education, job history and skills, and local employment opportunities).

For a complete list of the factors courts consider when dividing property, see Wis. Stats. § 767.61.

For example, a court may award all the equity in the marital home to a spouse that has a low future earning capacity because he or she gave up education, training, or a career to support the other spouse’s pursuit of higher education and/or career advancement.

Or, a court may award of all the debt related to one spouse’s business, such as a veterinary clinic, where the other spouse lacks the education necessary to run the business and worked for the veterinarian spouse at the clinic throughout the marriage.

Are Prenuptial Agreements Considered When Dividing Property in Wisconsin?

Yes. Prenuptial agreements (also called premarital agreements) may impact property division. Wisconsin is one of several states that has enacted the Uniform Premarital Agreement Act. This means if a valid prenuptial agreement (signed by both spouses) awards certain property solely to one spouse, that property is no longer marital and is not subject to division by the court upon divorce.

However, prenuptial agreements can be modified (changed) later, during the marriage, via additional property agreements (sometimes called post-nuptial agreements), which must be signed by both spouses.

And, of course, during a divorce, spouses can agree to ditch their prenup and enter into terms that are different than those contained in their premarital agreement. If so, they will need to include these new terms in a marital settlement agreement (or property settlement agreement) as part of their divorce.

If you have questions about the division of property or a prenuptial agreement, you should contact an experienced family law attorney for help.

Resources

For a complete list of the factors courts consider when dividing property, see Wis. Stats. § 767.61.

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