Marriage can be a beautiful thing, filled with love, companionship, and shared experiences. At one point, you and your spouse likely entered the marriage full of hope and ready to build a life together.
Over time, things may have changed, and you may have decided it’s best to go your separate ways. But what happens to everything you accumulated during your marriage? Your home, retirement savings, and personal possessions—how will these be divided when you divorce?
Here at Vanden Heuvel & Dineen, S.C., we understand this is a challenging situation for many of our clients in eastern Wisconsin. With over 40 years representing local families, our attorneys aim to help you navigate the property division process.
This guide will explain the distribution laws in Wisconsin and what they could mean for you.
Property Distribution in Wisconsin Law
First things first: Wisconsin is a community property state, just like it’s a “no-fault” state. This means the laws that apply here may differ from those in other states.
In Wisconsin, all marital property and assets will be divided 50/50 in the event of a divorce, legal separation, or annulment. Equitable distribution takes a different approach. In those states, the court aims to divide property fairly but not always equally.
Wisconsin Statute 767.61 provides the legal framework for property division. However, the statute also authorizes judges to alter this distribution after evaluating certain criteria. The courts may consider various factors (which we’ll discuss shortly) when determining who gets what.
Finally, it’s important to note that we said all “marital property” will be divided. That’s because there are different types of property in a marriage.
Marital Property in Wisconsin
A marriage can be as long or short as you like, but in most cases, spouses go through a lot together, including big and small purchases. Marital property includes any assets or debts acquired by either spouse during the course of the marriage, no matter whose name they are in. Some common examples include:
- Primary residence
- Vacation homes/investment properties
- Vehicles
- Furniture and household items
- Bank accounts and investment accounts
- Businesses
- Personal property like furniture, jewelry, art
One complex asset is the marital home. Even if the title or mortgage is only in one spouse’s name, it’s still generally considered joint marital property. The same applies to retirement plans – if you or your spouse earned pension benefits during the marriage, they must be divided appropriately.
A VHD Law attorney can help you make sense of what marital property you’ve accumulated during your marriage.
Separate Property in Wisconsin
Not all property is up for grabs in a divorce. Separate property is considered individual and not part of the marital estate. Some examples of individual property include:
- Assets or property owned before marriage
- Inheritances given by a third party
- Gifts from third parties during marriage
- Personal injury settlements
Things get more complicated if separate property becomes mixed or “commingled” with marital property in joint accounts. This often happens when an inheritance is deposited into a shared bank account. In Wisconsin, commingled separate property usually loses its status and becomes marital property subject to division.
It’s important to understand how to protect separate property in a divorce. Family law exists to protect both parties.
Debt Division
So far, we’ve covered things that you actually want to keep. But what about debt? Just like assets, debts acquired during the marriage are also subject to division. That can include credit card balances, mortgages, car loans, and even student loans. The court will aim to divide debts equitably, just like assets.
The Process of Property Division
Dividing an entire household’s worth of property is complex. You’ll see that it isn’t as simple as cutting everything in half, which is why you will likely want a family law attorney at your side. Here is a general overview of what’s involved:
Initial Disclosure
Each spouse must fully disclose all income, assets, debts, and relevant financial information. Accurate documentation is crucial, as failing to disclose assets can lead to serious legal consequences.
Valuation
Once all assets are on the table, they need to be valued. This is easier for some assets, like bank accounts, and harder for others, like art or antiques. In some cases, professional appraisers may be brought in to assess the value of certain assets.
Division Proposals
Based on the valuation conclusions, each party will develop their own proposed distribution plan. This step involves negotiating back and forth towards an acceptable agreement.
Reaching consensus while emotions run high can be very difficult for couples undergoing divorce. Hiring experienced legal counsel is highly recommended during talks to protect your rights.
Factors Affecting Distribution
The courts will aim to split everything 50/50, but it is not always an exact science. There are factors that can sway the balance of equitable distribution, including:
- Length of marriage
- Age and health conditions
- Contributions to the marital estate
- Economic circumstances and earning power
- Custodial provisions for minor children
- Tax implications
The court has broad discretion when applying these guidelines to achieve fairness. A divorce lawyer can advise how best to present your unique situation.
Prenuptial Agreements
Of course, we’ve all heard of the “prenup.” A prenuptial agreement is a contract entered before exchanging vows. It allows you to define separate property and alter the default rules of equitable distribution upon divorce.
However, prenups must meet certain conditions – like financial disclosures and lack of duress – to be enforceable. Consult with legal counsel when creating or signing one of these agreements.
Alternative Dispute Resolution
In the best-case scenario, divorcing couples can divide their property without a courtroom brawl. Consider alternative dispute resolution methods like mediation and collaborative law. These processes aim to develop win-win solutions regarding property division.
Many couples prefer the greater control, reduced costs, and privacy afforded by alternative dispute resolution.
Court Involvement
If all else fails and the couples cannot agree, the court will step in to divide the property. Contested divorce trials require presenting evidence about valuations and advocating for certain distribution proposals. A VHD Law lawyer at your side can be immensely profitable here, especially if your ex-spouse has one.
The final court order is legally binding, though appeals or modifications may be possible under certain conditions after the fact.
Protect Your Property Rights
We understand that divorce is never easy. The process of dividing the life you’ve built with someone else can be emotionally and financially draining. But you don’t have to go through it alone.
The attorneys at Vanden Heuvel & Dineen have guided countless clients through this process. If you need assistance understanding your rights or negotiating a property division, please contact our office today to schedule a free consultation. Our legal team is here to support you at this challenging time.
