Our office receives a number of questions and inquiries on how pre-marital assets are treated in a divorce case under Wisconsin law. Are pre-marital assets exempt from property division or are they divisible under Wisconsin law?

TL;DR Summary of Pre-Marital Assets; Exempt Under Wisconsin law?

• In Wisconsin, all property owned by either spouse, including assets acquired before the marriage, is considered marital property and is subject to a presumed 50/50 split in a divorce.
• A court has the discretion to deviate from the 50/50 rule, with the two most important factors being the length of the marriage and the property each person brought into it.

All property in a divorce case in Wisconsin, whether acquired before the marriage or during the marriage is considered marital, and therefore subject to division at the time of the final divorce. The only property that is exempt from equal property division, is property that was acquired from a third party as a result of a gift or inheritance. This means that pre-marital assets are subject to presumed equal property division. You don’t get to keep it, just because you owned it prior to marriage.

However, under the property division statute in Wisconsin, s. 767.61, the court has discretion to deviate from presumed 50/50 property division, based on all of the factors listed under the statute. The two chief factors in a shorter-term marriage would be (a) the length of the marriage and (b) property brought into the marriage by either party.

What this means is that in a shorter-term marriage, one can advocate that any property that they brought into the marriage, may be, with the court’s discretion, should be restored to them without division. Any enhanced value or increase in the value of that pre-marital asset that occurred during the marriage would be fair game, along with any assets the parties have acquired together during the marriage. The person making this argument also has the burden of proving to the court the existence of the asset before the marriage, along with the value of that asset at the time of marriage.

The courts have discretion and while the rule presumes 50/50, the courts can deviate, particularly on very short-term marriages. Of course, the easy advice is to protect yourself by having a pre-nuptial agreement to make sure you secure the ownership of any pre-marital assets. Most don’t take this route and are forced to sweat it out if they get a divorce.

If you have questions on pre-marital assets or property division when getting a divorce in the state of Wisconsin, feel free to call the experienced family lawyers at Karp & Iancu, S.C. today for a 100% confidential consultation.