When a couple gets divorced, everything from the marriage must be sorted out by the courts. Among the tasks the court must perform, a universal one is property division, specifically Wisconsin property division.
A divorcing spouse should not proceed without the guidance of a licensed Family Law attorney. Property division laws can be complex, not all divorce cases are the same and lawyers have the proper training and experience to tell the judge what a divorcing spouse wants or needs from the property division.
Property Division Divorce Laws in Wisconsin
The purpose of Wisconsin property division laws is to make sure that Wisconsin marital property is allocated equally to each spouse as Wisconsin divorce property, generally in a 50-50 split. If a 50-50 division would not be equitable, the courts may choose to divide the property in a more equitable fashion under Wisconsin Statute §767.61(3).
Wisconsin is a community property state. This means that with regard to Wisconsin divorce assets, each spouse has a ½ vested interest in the property of the other spouse that should be considered in dividing Wisconsin divorce assets or Wisconsin divorce property. The only property that does not come into the court's distribution is that which is listed as an exception Wisconsin Statute §767.61(2).
What is considered Marital and Non-Marital Property?
Wisconsin marital property is all property acquired during a marriage, regardless of its source or separation from other marital assets. Property acquired during the marriage is presumed to be community property.
Non-marital property is property exempt from division under Wisconsin Statute §767.61(2)(a). This includes:
- Property shown to have been acquired by either party before marriage
- Gifts from a person other than the other party
- Property acquired through the death of another, including, but not limited to: life insurance proceeds, payments made under a deferred employment benefit plan, etc.
In addition, Wisconsin Statute §767.61(2)(b) states that the non-marital property designation does not apply if the court finds that not dividing the property will create a hardship on the other party. If the court makes such a finding, the court may divest this property in a fair and equitable manner.
Dividing Assets and Debt
After the court decides which property is available for distribution, the next step is property valuation. The last step is either a 50-50 division or property or the most equitable division under Wisconsin Statute §767.61(3). Some of the factors considered are:
- The marriage's length
- The separate property of each party
- The parties' ages & health
- Any maintenance payments awarded to either party
- The parties' economic circumstances
Using these statutory factors, judges decide how a marriage's assets should be divided. Here is a list of the most common property items and the most common allocation scheme used.
- Cash: Divided equally among the spouses.
- Example 1: A joint savings account has $5,000. The court would most likely award $2,500 to each spouse.
- Example 2: A joint savings account has $5,000. One spouse contributed $4,000 and the other contributed $1,000. The amount will be divided equally or based on the court's determination that one spouse would not be treated fairly under a 50-50 split.
- Retirement Plans: The amount accrued
during the marriage is divided equally.
- Example 1: A spouse got benefits in a retirement plan after working for 25 years and was married for 20 of those years. The ex-spouse would most likely be entitled to 50% of the income acquired during the 20 year marriage.
- Example 2: A spouse has an unvested retirement plan. No division takes place until the plan is payable to the spouse who has it.
- Vehicles: Divided based on the values as
determined by the court. May be sold or
given to a spouse outright.
- Example 1: One spouse owns a car. The car will most likely be sold with proceeds divided 50-50 or the car may be given to a poorer spouse based on the court's discretion.
- Example 2: A motorcycle has a shared title. The motorcycle may be sold with the proceeds in a 50-50 split or given to a poorer spouse if a 50-50 split would be unfair.
- Insurance: The portion paid for or
acquired during the marriage is divided equally between the spouses.
- Example 1: One spouse has covered the other under employer health insurance. The other spouse is in poor health and could not afford alternate health care coverage. The court may order the first spouse to continue covering that spouse for a set time period and/or award a cash payment to the ill spouse to get new coverage.
- Example 2: One spouse has a life insurance policy where the ex-spouse is to get survivor benefits. The spouse will be entitled to a value of 50% of the benefits that accrued during the marriage.
Settling Disputes in a Divorce Case with Property and Asset Division
Under Wisconsin case law, a property division order is final and can not be modified. The only time a final judgment might be reopened is if there are extraordinary circumstances. However, you may go back to the court to get a property division order enforced if a party is being uncooperative.
The trial court has great latitude in making decisions on property division and appellate courts will not change the order unless there was an abuse of discretion in the trial court.
Help From a Wisconsin Property Divorce Lawyer
Retaining a Wisconsin property divorce lawyer is key to getting the fairest and most equitable result in the property division phase of a divorce. The lawyer can provide professional guidance, keep you informed of likely outcomes and help you present the best arguments and presentation to the trial judge handling the divorce.