Family Law in Wausau WI: Property Division at Divorce: Who gets property brought to the marriage?

 In Divorce, Custody & Placement

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Oftentimes, parties to a divorce mistakenly believe that assets each party owned prior to the marriage will automatically be awarded to that party in the divorce.  In fact, in Wisconsin, generally, all property brought into and/or acquired during the marriage, regardless of how titled, is subject to division upon divorce. This includes assets such as pension plans, retirement accounts, vehicles, and real estate.  Of course, if you have a marital agreement that addresses property division at divorce, that could significantly affect the property awarded to each spouse.

Family Law in Wausau WI: Property Division Statute

The statute concerning property division is found at Wis. Stat. sec. 767.61:

(2) Property subject to division.

(a) Except as provided in par. (b), any property shown to have been acquired by either party prior to or during the course of the marriage in any of the following ways shall remain the property of that party and is not subject to a property division under this section:

1. As a gift from a person other than the other party.

2. By reason of the death of another, including, but not limited to, life insurance proceeds; payments made under a deferred employment benefit plan, as defined in s. 766.01 (4) (a), or an individual retirement account; and property acquired by right of survivorship, by a trust distribution, by bequest or inheritance or by a payable on death or a transfer on death arrangement under ch. 705.

3. With funds acquired in a manner provided in subd. 1. or 2.

(b) Paragraph (a) 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.

(3) Presumption of equal division. The court shall presume that all property not described in sub. (2) (a) is to be divided equally between the parties, but may alter this distribution without regard to marital misconduct after considering all of the following:

(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, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage.

(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) The amount and duration of an order under s. 767.56 granting maintenance payments to either party, any order for periodic family support payments under s. 767.531 and whether the property division is in lieu of such payments.

(j) Other economic circumstances of each party, including pension benefits, vested or unvested, and future interests.

(k) The tax consequences to each party.

(l) Any written agreement made by the parties before or during the marriage concerning any arrangement for property distribution; such agreements shall be binding upon the court except that no such agreement shall be binding where the terms of the agreement are inequitable as to either party. The court shall presume any such agreement to be equitable as to both parties.

(m) Such other factors as the court may in each individual case determine to be relevant.

There are two major exceptions to this general rule:  Property acquired from third parties by gift or inheritance (including life insurance proceeds) is generally not subject to division.  Even property acquired by gift or inheritance is subject to division with your spouse, if the court finds that allowing you to keep such assets will create a financial hardship for your spouse or your children.

The court presumes that divisible property is to be divided equally between the parties, but can deviate from an equal division of property after considering factors listed above, such as the length of the marriage; property brought to the marriage by each party; and the tax consequences to each party.

Family Law in Wausau WI: Attorney Contact Info

Family Law in Wausau WIGet more information about family law in Wausau WI. Learn more about the divorce process, property division and family law in Wausau WI from a family law attorney.  If you have questions about property division or other matters related to divorce, call an attorney specializing in family law in Wausau WI for a free telephone consultation. Call 715.843.6700 to speak with a lawyer practicing family law in Wausau WI.  Divorce lawyer wausau serving clients throughout north central Wisconsin.

Attorneys specializing in Family Law in Wausau WI: Eaton John Overbey Jackman, LLP

 

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