It is surprising that most people don’t know the answer to this question. We are frequently asked the question and the answer is yes. Wisconsin, since 1977, has been a marital property law state when it comes to a family getting a divorce or legal separation in Wisconsin. This means that there is a legal presumption that all property, whether acquired before or during the marriage is subject to 50/50 property division at the time of the divorce.
The only property that is exempt from equal property division, is property acquired by gift or an inheritance from a third party. Gifts that the parties exchange during their marriage are presumptively equal as well.
The court maintains discretion to deviate from presumed equal property division under s. 767.61, after considering all the factors listed under the statute. The two most significant that may apply in a shorter marriage, would be the length of the marriage and property brought into the marriage by either party. On a marriage of less than 5-7 years, one can make the argument that they be restored their pre-marital assets and only the assets that have been acquired together during the marriage should be divided equally, or any increase in the value of those pre-marital assets also be considered in property division. Such a marriage is generally considered by most divorce lawyers and judges as a “short-term marriage.”
On marriages of 20 years or more, those marriages are generally recognized by family lawyers and judges as “long-term marriages,” and the odds of convincing the trial court to go back twenty years to restore someone the value of an asset brought into the marriage, is not particularly very good.
The gray area is the 7 year to 20 year period. The closer you may be to the shorter length, the greater chance you may be able to convince the trial court of keeping out a pre-marital asset. Conversely, the closer you are to the long end of the stick, chances are the court is not going to give you credit for an asset owned prior to marriage. There is another answer for that problem, and that is, if you are entering a marriage with significant pre-marital assets, is to protect yourself by having a pre-nuptial agreement drafted by an experienced family lawyer. If done correctly, they are legally enforceable in court, with some limited exceptions.
If you have questions about property division in Wisconsin when going through a divorce, contact the experienced family lawyers at Karp & Iancu, S.C. today.
933 N. Mayfair Rd., Suite 300
Milwaukee, WI 53226
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