How to calculate property division in Wisconsin when getting a divorce
Is there any easy to use formula for how to calculate how property gets divided up when going through a divorce? Wisconsin is a community property state, which means, that all property acquired either before or during the marriage is subject to equal property division. The only property that is excluded from equal property division, is property acquired from a third party by way of gift or inheritance.
Gifts exchanged between the parties, either before or during the marriage are not excluded from property division. This would include an engagement or wedding ring. Such inter-spousal gifts are marital and must be considered in the division of the estate.
All personal property, other than a gift or an inheritance received from a third party, is subject to equal property division.
All real estate, other than a gift or an inheritance received from a third party, is subject to equal property division.
All property, whether real or personal, acquired prior to the marriage, is not excluded from the presumption of 50/50 property division.
Clearly, all property, whether real or personal, acquired during the marriage is subject to 50/50 property division.
Are there any exceptions? Under some circumstances, the court has discretion to deviate from equal property division after considering all the factors listed under s. 767.61, Wisconsin’s property division statute. Two of the more prevalent factors would be the length of the marriage and property brought into the marriage by either party. In shorter term marriages, generally defined as a marriage of less than 9 years, the court may consider awarding back to each of the parties, what they brought into the marriage. The court in such a case would divide up equally any property acquired together during the marriage, and any increase in value of a pre-owned asset.
Can an inheritance or gift be divided? Under some limited circumstances, the court can consider taking an exempt asset, such as a gift or inheritance and dividing it in such a way, within the court’s discretion, that the court feels is fair and just. This usually is only done in cases where it can be shown that there is a financial hardship.
So, what are the takeaways on calculating property division when going through a divorce in Wisconsin? The presumption is that all property owned either before or during the marriage is to be divided equally upon the divorce being granted. The only exceptions would be a gift or an inheritance received from a third party. The court has discretion in some limited cases to deviate from 50/50 property division and can even consider invading a gift or an inheritance, where there is a financial hardship.
It is best to talk to an experienced family lawyer in advance of either party filing for divorce. Karp & Iancu, S.C. offers an initial complimentary and confidential first meeting.