Wisconsin Property Division FAQ’s
HOW WILL OUR PROPERTY AND DEBTS BE DIVIDED?
The presumption in the State of Wisconsin is that all property and/or debts of the parties will be divided equally. This presumption can be overcome based on the following factors:
(a) The length of the marriage
(b) The property brought to the marriage by each party
(c) Whether one of the parties has substantial assets not subject to division by the court.
(d) The contribution of each party to the marriage, giving appropriate economic value to each party’s contribution in homemaking and child care services (e) The age and physical and emotional health of the parties
(f) The contribution by one party to the education, training or increased earning power of the other
(g) The earning capacity of each party
(h) The desirability of awarding the family home or the right to live therein for a reasonable period to the party having physical placement for the greater period of time.
(i) Maintenance and/or family support orders
(j) Other economic circumstances of each party
(k) The tax consequences to each party
(l) The previous written agreement of the parties
(m) Other relevant factors
The attorneys at Nelson, Krueger & Millenbach LLC will be able to evaluate the facts of your case and advise you as your assets and debts will likely be divided in your divorce action.
WHAT IF MY SPOUSE HAS EVERYTHING IN HIS/HER NAME?
Wisconsin is a marital property state which means that each spouse has a one-half interest in all property and/or debts acquired during the marriage. There are only a few exceptions such as inherited or gifted property. As a result, title, or in whose name an asset or debt is held, is largely irrelevant in the State of Wisconsin.
WHAT IF I HAVE RECEIVED GIFTED OR INHERITED PROPERTY DURING THE MARRIAGE?
Generally, property that is inherited or gifted is not subject to division in a divorce but there are exceptions. How gifted or inherited property is divided depends on what was done with that property after it was received. For example, if you inherit a sum of money and keep it separate from marital property, you will most likely be able to keep that inheritance. However, if you take your inheritance and use it for a down payment on a marital home, the court will most likely consider that marital property and divide it. Sometimes, though, the court will give a party credit for assets brought to the marriage, including inherited or gifted money.
WHAT IF THERE IS A DISPUTE ABOUT THE VALUE OF CERTAIN PROPERTY?
Often times it is necessary to have property appraised to determine a value. The court usually appoints an appraiser or valuator as an expert in those cases and orders that the parties split the cost for that expert. Each party is also entitled to hire their own independent appraiser or valuator as well.
HOW ARE PENSIONS OR RETIREMENT ACCOUNTS DIVIDED?
Again, the presumption in Wisconsin is that all property, including retirement accounts, will be divided equally. For most 401(k)’s, pension plans, retirement accounts or IRA’s, it is necessary to file with the Court a special order called a Qualified Domestic Relations Order (called a “QDRO”) which effectuates a division of those accounts. For some retirement accounts, such as military, state or county pension plans, QDRO’s do not apply and other special orders are required. If these type of retirement benefits exist, a lawyer or accountant is the most qualified person to assist with the division of the same.
Experts can also be hired to value retirement assets such as pensions. The court usually appoints an appraiser or valuator as an expert in those cases and orders that the parties split the cost for that expert. Each party is also entitled to hire their own independent appraiser or valuator as well.
WHAT IF I OWNED PROPERTY BEFORE I WAS MARRIED? CAN MY SPOUSE GET HALF OF THAT?
In Wisconsin, there is no exemption allowed for pre-marital property. All property (and debts) owned by either party becomes marital property at the time of the marriage. Therefore, all property is equally divisible at the time of divorce, except for gifts or inheritances as stated above. However, the court does have discretion to deviate from an equal division of the property based on the factors listed above, one of which is “contributions to the marriage.” This deviation is more likely in short term marriages or where one party brought significant assets into a marriage, but the court must consider all of the circumstances when making this decision.
WILL THE COURT ENFORCE OUR PRE-NUPTIAL AGREEMENT?
Wisconsin law states that a pre-nuptial agreement is binding on the court unless the terms of the agreement are inequitable as to either party and do not follow Wisconsin law. It is important that parties seeking a pre-nuptial agreement seek the assistance of a knowledgeable attorney prior to signing such an agreement.
WHAT IF MY SPOUSE ACCUMULATED A LARGE AMOUNT OF DEBT WITHOUT MY KNOWLEDGE? AM I RESPONSIBLE FOR HALF OF THE DEBT?
Because Wisconsin is a marital property state and the presumption is for an equal division of property and debt, the answer would be yes. Again, there are exceptions. For example, if the debt accumulation was due to a spouse’s addiction, such as gambling, drugs or alcohol (marital waste), the court usually relieves the other party from those liabilities. There are other situations where you may not be responsible for debt acquired solely by the other party. Your attorney at Nelson, Krueger & Millenbach, LLC can review the facts of your situation and advise you as what they believe to be the likely result in your case.
WHAT IF MY SPOUSE DOESN’T PAY DEBT THAT HE/SHE AGREES TO PAY OR THAT THE COURT ORDERS HE/SHE TO PAY?
Unfortunately, creditors are not bound by family court orders. As a result, they may seek payment from you on a debt that your spouse was ordered to pay. The only recourse you would have would be to file a contempt motion with the family court for your spouse’s failure to pay. Most often, the court will order remedies which may include an income assignment to you for any amounts your spouse failed to pay.
WHAT IF MY SPOUSE (EX-SPOUSE) FILES BANKRUPTCY?
If your spouse files bankruptcy, you would be responsible for the entire amount of any debt he/she is discharged from. Typically, however, this only applies to joint debts. If a debt is in one party’s name alone, the creditor doesn’t often seek repayment from a non-debtor spouse although it does happen on occasion. Again, your remedy would be to file a contempt motion in the family court as stated above. A debtor cannot discharge support obligations but may be able to discharge a property settlement payment in certain situations.
WHAT IF I DECIDE AFTER MY DIVORCE THAT THE PROPERTY/DEBT DIVISION WAS UNFAIR AND I WANT TO CHANGE IT?
The court does not have the authority to change a property division order after the date of the final divorce unless a party files a Motion to Reopen and the court grants that motion. The court will only reopen a judgment for very limited reasons such as mistake, fraud, inexcusable neglect, new information or other equitable grounds. A Motion to Reopen must be filed with a one year from the date a discovery is made of a mistake, fraud, inexcusable neglect that occurred in the final divorce. However, please be aware that it is very difficult to reopen a final judgment and such a Motion is very rarely granted.
14 thoughts on “Property Division in a Divorce in Wisconsin”
My spouse is telling me that we have a pre-nuptial agreement,and i dont remember to have it,if we do ,no attorney was envolved.How can i prove it?
If you are getting a divorce and the prenuptial is in his favor, then it is up to him to prove it, not you. If it is in your favor, then you simply need to ask him for it. If he can’t produce it, then I doubt it exists.
There are certain criteria for a pre-nuptial to be upheld in a divorce. Both parties’ having attorneys and understanding the consequences of what they signed is one of them. If you don’t even remember signing it, then it is doubtful that you understood it at the time. If you have any concerns about this agreement or how it affects you, you should consult an experienced divorce attorney to discuss it further.
A year after the divorce is final, can my ex decide he will no longer pay the mortgage on the house we are selling? He was and is the only one with an income.
It depends on your divorce judgment. If the divorce judgment states that he must make the payments, then he is in contempt if he does not and you can take him back to court to force him to pay. If there is nothing in the divorce judgment as to who is supposed to make the payments, then you can still argue to the court that he should pay if he is living there. But, if he is not, then there is probably nothing you can do. Your best option is to seek the advice of an experienced divorce attorney to go through your judgment and the facts to give you more specific advice on this. Good luck!
What about a spouse who was charged with substantial battery, 4 months after we were married and a judgment was levied against him for $30,000. If we divorce, would that not be his sole debt, because it was due to a crime he committed against another person? I had nothing to do with his actions.
Yes, that would very likely be his sole debt in a divorce.
My husband and I own a home together. He is stating because he can not solely afford it on his own I can have the home. In Wisconsin can that be done? Can both parties agree to one person taking the home if that other party can afford it?
Of course. However, in a divorce, there are two parts to keeping a home. First, you need to pay him 1/2 of the equity. However, he can agree to waive his equity or you can offset the value against other assets. Second, you need to refinance to get his name off the mortgage(s). This is often the tricky part as this is often dictated by bank rules. Again, he can agree to give you additional time to do this but eventually it needs to be done or his credit will be affected. Your best bet is to consult with an experienced divorce attorney to go through the facts of your case and obtain advice about the best way to hand this.
You say if it want to keep the home I can “off set the value against other assets” – is that off setting the total value of the home $200,000 or just the spouses equity in the home? (No mortgage on the home)
Just the equity.
my husband and i are divorced, and he was ordered to pay me money for our cabin property that he got in divorce. he had 60 days to pay this. and told the judge that he had the money. well 60th day came and no money then i get a call from a mortgage place wanting me to sign quick claim deed. my name was never on title and there is no mortgage. and that this will take some time. i want to file content of court on this. and i was told if he didnt pay i would have a choice of me getting the property for either keeping it or selling it. and during the divorce i wanted this property to be divided i didnt want any money i wanted part of it. so for filing content, do i ask the judge that i want the property instead of the money.
You should consult with an experienced divorce attorney about this. Any options you may have are dictated by the terms of your divorce judgment. Without seeing that, I could not advise you. If the judgment provides that you get the property if he fails to pay, then yes that would be an option. However, if the judgment simply provides that he has to pay, then typically your only remedy would be to find him in contempt and force a sale of the property (although you could offer to “buy” it). It also is common for a bank to ask that you sign a Quit Claim Deed in this situation. Even if your name is not on the property, you have a marital interest in the property and the bank wants to make sure that you clear out your marital interest on the title via a Quit Claim Deed. Good luck.
Hi, I am divorcing my husband and we bought a home 1 year ago. He wants to stay in the house and I am leaving. He intends on paying me my 1/2 of the equity in the house. Can I ask for 1/2 of the amount of the downpayment we made for the house? It was about 5,000.
Also, I am moving out of the house at the end of March. Do I need to file a quick claim? or what might you suggest?
Thank you for your questions. I am afraid that answers to these questions fall into the category of legal advice and I ethically cannot give you legal advice in this forum. You should consult with an experienced attorney regarding these questions. Most divorce attorneys offer free consultations and can give you some answers or advice to your specific questions, even if you do not retain their services. Good luck.