How Property Division Works in a Wisconsin Divorce

 Posted on October 25, 2023 in Property Division

Wisconsin is a community state, which means the court is presumed to divide all marital property equally between spouses in a divorce. However, not all property is subject to equal distribution, which is the case for individual property. A knowledgeable attorney can help you decipher which is which while also going to bat for you in court if necessary.

Marital Property vs. Individual Property

Marital property is considered to be all assets acquired during a marriage. The exception to this is gifts or inheritance bequeathed to one spouse. Marital property is subject to a 50/50 division in the event of divorce, regardless of whose name may be on the title.

Individual property, also referred to as separate property, is any asset obtained before a marriage that has not been commingled with marital property. Gifts or inheritance left to a single spouse are also considered individual property. Of course, if the gifts or inheritance are commingled with marital property, they can then also be seen as marital property in court.

An example of commingled property is a joint bank account. If one spouse places their inherited or gifted money into the joint account, then that money becomes marital property. There is something of a loophole to this scenario in that if you can trace back to the specific source of the gift or inheritance before commingling, you may be able to convince a judge the total value of the gift or inheritance is still considered individual property.

Another way that separate property can become marital property is when the non-owner spouse makes substantial contributions toward the separate property. This does not guarantee individual property becomes marital property. For that to happen, it would require the non-owner spouse not to have been reasonably compensated for their contributions that increased the value of the property.

Debts are Considered Marital Property

All debt accrued during the marriage is considered a family obligation under Wisconsin law. As such, all debt is considered marital property and subject to division in the event of divorce. Both spouses are responsible for paying off their share of the debt either through marital property or out of pocket. Individual property can be used to pay off a debt if the court orders it.

Can a Judge Alter the 50/50 Split?

As a community property state, the law presumes a 50/50 split of all marital assets. However, in some considerations, a judge can choose to deviate from the standard equal split. This determination is based on several factors, including:

• Total property brought to the marriage
• How long the marriage lasted
• The age, physical, emotional, and mental health of the spouses
• The contribution each spouse made toward home and childcare
• The contribution toward education, training, or enhanced earning power produced by one spouse
• The earning capacity of each spouse
• Whether one spouse is to receive sole custody of the children (in the division of the home)
• How much spousal maintenance one spouse is already obligated to pay
• Tax considerations of both spouses
• Economic circumstances of both spouses after the divorce
• Prenuptial or postnuptial agreements concerning the division of property
• Other factors the court might consider

Contact a Waukesha County, WI Divorce Lawyer

Property division can be a major point of contention in any divorce. A skilled Oconomowoc, WI property division attorney can provide advice and set realistic expectations for what you are likely to receive in your share of marital property. Bucher, Wolff & Sonderhouse, LLP will be your guide and anchor throughout the divorce proceedings. Contact our office at 262-232-6699 to set up an appointment for a free consultation.