Wisconsin is one of a minority of states that use a community property system for defining what property belongs to both spouses equally and what belongs to one spouse alone. When a couple divorces in Wisconsin, the court start with the assumption that it will divide the community (marital) property equally between them. From there, the court considers a set of factors to determine whether it's appropriate to shift the balance so that one spouse receives more than half of the property. Ultimately, the court's decision about property division must take into account the past efforts and future needs of both spouses.
In a divorce, the distribution of property depends on which property belongs to the marriage – community or marital property – and which property belongs to each of the two spouses – separate property. Community property is property acquired or income earned during the marriage. Property used for the benefit of the marriage, even if it started out as separate property, may also be considered community property. The type of property involved can include real property, like the family home, and intangible property like income, dividends, and benefits.
Separate property is property that belonged only to one spouse before marriage and was kept separate throughout the marriage. It could also include property given only to one spouse during the marriage, like a gift to the husband alone or an inheritance upon the death of the wife’s great aunt to the wife alone.
A Wisconsin court treats all property as community property unless and until a spouse proves it is his or hers alone. Proving it usually means giving the court evidence of when the spouse got the property and demonstrating that it wasn't mixed in with community property or used for community purposes during the marriage. Once the court accepts that an item is the separate property of one spouse, that property remains in the hands of its original owner and can't be awarded to the other spouse. The rest of the community property must be divided between the spouses.
The court starts with a presumption of equal division, then looks at a variety of factors to determine whether adjustments are appropriate. These factors could include anything from the simple assessment of the value of property brought into the marriage, to the more complicated consideration of how the physical and emotional health of the spouses affects their financial needs. Other factors include the length of the marriage, tax consequences of different ways of dividing property, the earning potential of each spouse, and whether one spouse contributed to the education of the other. Homemaking and child-rearing are considered, too, along with any debts incurred by a spouse during marriage.
Throughout the process, the spouses will have opportunities to agree between themselves on what is a fair division. If they decide, for example, to sell the house and split the sale proceeds, while also agreeing that the wife will keep her retirement benefits while the husband keeps the family cabin, they can submit their wishes to the court in a marital property agreement. In most cases, a court will accept this type of agreement without further involvement. On the other hand, if the spouses cannot work together, or if there are certain items of property that they cannot agree on, then the court will decide for them.
The court will consider spousal support (alimony) as part of the equitable division of property. Spousal support is a payment from one spouse to the other to help the recipient spouse maintain a lifestyle as close as possible to the one they had during marriage. The court will look at both the marital property and the separate property of the obligated spouse (the one who pays the support) to determine the amount a spouse will owe, and the court could use support payments to make up for a grant of property to the obligated spouse.
If you are divorcing or considering divorce in Wisconsin or any other state, get help from an experienced attorney. Divorce is a difficult process, especially where you must balance property rights against the needs of your former spouse and any children of the marriage. To ease the process and help you move forward in your life, your best bet is to find an attorney who is knowledgeable about your state’s laws and about how the system works in your county’s court.
You can read the law on division of property at the Wisconsin Statute Annotated 767.61. To find out more about the presumptions that anchor property division and about marital property agreements, see the Wisconsin Statutes Annotated 766.31 and 766.58, respectively.