Advocating Strongly for Your Position to Achieve a Fair Division of Marital Property During Divorce Proceedings
At the time of divorce, the court is required to divide all of the marital property between the parties. The section of Wisconsin law dealing with the division of property is found at Wisconsin Statutes, §767.61.
What Property Must Be Divided in a Wisconsin Divorce?
The definition of property to be divided is quite broad, including not only household items but bank accounts, real estate, life insurance cash value, brokerage accounts, vehicles, and retirement accounts, even if they are not yet vested. Excluded from the assets to be divided are gifted and inherited property, but whether those items retain their quality to be excluded may be a decision made by the courts. For instance, the court may decide the $10,000 a grandmother gave to the wife is no longer excluded from division because the wife put it into an account with both parties’ names on it. Whether or not, and to what extent, the $10,000 is factored into the property division would be up to negotiations by the parties or the decision of the court.
Wisconsin Courts Start with 50/50 Assumption
Generally speaking, Wisconsin courts by statute must presume a 50/50 split of property, although the court may deviate from equal division if one or more of the factors set forth in the statute are met. These include the length of the marriage, whether one person has substantial inherited or gifted assets not being divided, the spousal support ordered, and other factors. It should be noted that premarital assets become marital assets subject to division in a divorce on the day of marriage, but such assets accrued prior to the marriage provide reason for the court to deviate from a 50/50 split of the marital assets.
Marital Misconduct is not Considered
Marital misconduct is NOT considered in property division because Wisconsin is a no-fault state, so misconduct, such as an extramarital affair, does not in and of itself factor into the court’s decision on property division or spousal support. Marital waste (gambling losses, for example), however, may be considered. Again, it is up to the court ultimately to decide whether the presumption of a 50/50 division should be deviated from.
Courts May Decide Who Gets Unique Assets
Many times, parties do not dispute the amount of assets each party gets but have trouble agreeing upon who gets what asset. Lawyers often attempt to look at each party’s interest, with consideration of the affect on the children of the marriage, and come up with a solution that meets both parties’ interests and goals. Creative ways of awarding assets to provide both cash flow for the present and security for the future is possible.
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