Division of Property in a Wisconsin Divorce
The transition from one household into two during a divorce is challenging and painful. Dividing property often becomes heated as spouses argue over assets they feel are rightfully theirs. So how do assets get divided in a divorce in these tense situations?
Before property may be divided, it must be determined if it is marital property or separate property. Separate property includes:
- Inheritance (received either before or during the marriage);
- Gifts; and
- Pain and suffering awards in a personal injury judgment.
Property owned by a spouse prior to the marriage is not considered separate property. However, the court has the discretion to give that spouse a credit in the division of property.
However, separate property can become marital property, depending on the way it is used during the marriage. For example, if you add your spouse’s name to the deed of a house that you owned before the marriage, it may be identified as marital property during a divorce.
In addition, the increase in value of a separate asset may be labeled as marital property. Courts must examine whether the appreciation is active or passive.
With active appreciation, the contributions of one spouse increase the value of the asset—such as remodeling a home. With passive appreciation, the actions of a spouse do not impact the value of the asset. Inflation is an example.
Wisconsin is a community property state. Aside from separate property, all other property that was acquired after the parties were married will usually be subject to division—regardless of who bought it or how it is titled. Essentially, assets and debts that are acquired during a marriage enter one pool of marital property. Examples of assets that are usually subject to division include: retirement accounts, annuities, life insurance, bank accounts, stocks, real estate, cars, businesses, antiques, tax refunds, and dozens of others. Typically, these assets will be equally divided between the spouses.
However, if a spouse argues that an asset should not be divided equally between the parties, the court may examine a number of factors to determine an appropriate division. These factors include:
- The length of the marriage
- The property each spouse brought into the marriage
- The standard of living the parties established during the marriage
- The age and health of the spouses
- The earning potential and income of each spouse
- Each party’s financial condition at the finalization of the divorce
- A spouse’s contributions to the education, training or earning power of the other spouse
- The custodial parent’s needs to maintain the children’s lifestyle
The court may also consider other factors it feels are necessary to make an informed decision on property division matters.
Therefore, it is easy to see how two couples going through divorces may have very different outcomes in regards to property division. When possible, it is best to settle property issues out of court so that the parties control the outcome of their case.
A skilled Wisconsin divorce attorney is essential
Once a Wisconsin divorce is finalized, property division is difficult to appeal. Therefore, it is important to have quality legal guidance throughout the divorce process. At Bandle & Zaeske, our divorce attorneys have the skill and experience you need to protect your best interests. We represent clients in Washington County, Ozaukee County, and Waukesha County. To schedule a free consultation with our divorce attorneys, call (414) 359-1424 or contact us online.