Jun 16

Property Subject to Division in Wisconsin Divorce

When an action for divorce is filed in Wisconsin, both the husband and wife are required to disclose all of the assets and liabilities they know of. This means everything in the husband’s name, the wife’s name, and both of their names. It includes assets and liabilities brought to the marriage and those accumulated during the marriage.
Assets include things as real estate, bank accounts, retirement benefits, stocks, cash surrender value of life insurance, an interest in a partnership or corporation, personal property, and any other financial interest one or both of them may have. Liabilities include, for example, a mortgage and line of credit, car loans, credit card debt, and student loans. The total value of the assets minus the total amount of the liabilities is often referred to as the marital estate and represents the property which can be divided between the spouses.
Many believe that the assets they had at the start of the marriage are excluded from the division of property and returned to them. That is not necessarily the case in Wisconsin where property brought to the marriage is not automatically excluded from the marital estate. Whether to exclude property brought to the marriage is a factor for the Judge to consider. The party wishing to have that property excluded must present arguments as to why it should be. The ultimate decision of whether to include or exclude this category of property depends on the specific facts of the case.
Property gifted to or inherited by one party is in a different category. The starting point is that it will not be included in the estate to be divided if the party was careful in how he or she treated the property. As a general rule, the property needs to have been kept in only that person’s name, not mixed with “marital property”, not used for family purposes, and it was not established that the person intended to share the property with the other person. The person who does not want the property included in the marital estate is the one who must establish why it should be excluded.
A very different make-up of the property to be divided can be achieved when there is an enforceable pre-nuptial or post-nuptial agreement that identifies the property that is or is not subject to division.