What is considered marital property in Wisconsin?

Wisconsin is a “community property” state, which means any property that has been acquired (by either party) prior to or during the course of the marriage is considered community property, even if it is not titled in both names. For example, the home and real property in which the family usually resided during the marriage is referred to as the marital home. Either one or both spouses may own the marital home. Regardless of which spouse is the titled owner of the marital home, each spouse has a one-half interest in the home and has the same right to use and reside in the home. This right can be varied by court order or contract.

Exempted Property from Division

Property may be considered individual property of a party and not subject to division if it was acquired:

1. As a gift from someone other than your spouse
2. By your family's inheritance

This exempted property does not apply if the court finds that refusal to divide the property will create a hardship on the other party or on the children of the marriage. If the court makes such a finding, the court may divest the party of the property in a fair and equitable manner.

Does ALL property get divided?

In Wisconsin, there is a presumption that property will be divided equally between parties. This presumption can be overcome by arguments as to why a different division is fairer. While the law presumes all property is community, many times arguments are made that each party should leave with what they came with. In practice, the parties often negotiate the division of the assets acquired during the marriage and exclude their premarital assets as their individual property. However, an argument can be made that the premarital interests are so commingled with marital assets that they have lost their individual interest and have become all marital. Such an argument requires a careful review of the facts of the situation.

If I started a business during the marriage, will it be divided too?

Yes, if you start a business during the marriage, a court may consider the value of the business, including assets and receivables, as marital property. Your spouse may receive part or even half of your business in a divorce. Since it may be difficult to physically divide a business, a court may allocate another marital asset that is equal to the value of your business. The court may also order assets from the business to be paid to the ex-spouse.

Is my retirement fund still mine?

Under Wisconsin law, all assets brought to the marriage or acquired during the marriage are considered marital property. Retirement funds are included in assets that can be divided.

When gathering all the asset and debt information in your marital estate, it is often a balancing act in determining who will keep which assets and debt. If you have enough assets that are equal in value to your retirement account, then your spouse could opt to receive those assets, and you could keep your retirement account.

What if my retirement account began before my marriage?

If you have any pre-marital interest in your retirement accounts, you can certainly negotiate with your spouse to exclude your pre-marital interest from the marital assets being divided. You will need to gather records indicating the value of your account at the time of the marriage to verify your pre-marital interest. You should note that the court is not required to grant you any premarital interest.

Learn more about marital property division from the divorce attorneys at Divergent Family Law.