Allocation of marital property between spouses is a key aspect of a Wisconsin divorce. Although there is a statutory presumption that marital property should be divided equally between the spouses, one spouse could seek an unequal division of the marital property if the other spouse engaged in “marital waste.”
Marital Waste, Loosely Defined
Marital waste is not defined in the statutes, but, over the years, Wisconsin courts established a framework for how to demonstrate marital waste.
The essence of a marital waste claim brought by one spouse is that the other spouse intentionally or negligently squandered marital property by:
(a) incurring debt that was not agreed upon and which did not benefit the marital estate and/or
(b) spending marital assets in a wasteful manner.
Marital Waste Related to Debt
Examples of marital waste related to debt can include excessive spending by one spouse on a vacation with a significant other or tax fraud. However, if the spouse alleging the marital waste agreed to any of the expenses or participated in them, then there will likely be no finding that marital waste occurred.
Marital Waste Related to Wasteful Spending
Examples of marital waste related to spending of assets include excessive gambling or a failed, clearly risky business deal. In these examples, marital assets are spent with no reasonable return to the marital estate. Like a debt-related marital waste claim, if the spouse alleging the claim agreed to or participated in any of the expenditures, there is likely no marital waste.
Successful Marital Waste Claims Affect Asset and/or Debt Division
Recourse for a spouse where the other spouse spent assets in a wasteful manner could be to receive an equivalent amount from the wasteful spouse’s share of marital assets. A spouse can also claim that the incurring of debt was wasteful, and, therefore, the spouses should not equally bear the burden of the accumulated debt.
Timing Critical to Marital Waste Claims
When considering a marital waste claim, timing is important. It was previously interpreted that a court could only consider a claim if the alleged marital waste occurred within a year of filing the divorce action. However, more recent case law is consistent in that a court may look beyond a year when examining a marital waste claim. While Wisconsin courts can consider claims outside the one-year time-frame, the availability of evidence supporting the claim may become more difficult to produce as time goes on.
The burden to prove a claim for marital waste is on the spouse alleging marital waste occurred. Therefore, if a spouse is claiming or defending marital waste, effective presentation of facts to the court is essential. If you have questions about marital waste claims or divorce generally, please contact one of the Hawks Quindel family law attorneys by calling 414-271-8650 in the Milwaukee area or 608-257-0040 in the Madison area.
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