I have been getting a lot of questions and inquiries lately on how pre-marital assets are treated in a divorce case under Wisconsin law. Are the assets exempt from property division or are they divisible under Wisconsin law?
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, perhaps 7 years or less, one can expect that any property that they brought into the marriage, may be, with the court’s discretion and assuming the person can trace and show ownership prior to marriage, is to be restored that asset. Any enhanced value or increase in the value of that pre-marital asset would be fair game, along with any assets the parties have acquired together during the marriage.
At some point, given the length of the marriage, it becomes exceedingly difficult to make the argument that a person should be restored their pre-marital assets. Certainly on any long term marriages of 20 years or more, it is unlikely and improbably of convincing the trial court to deviate from 50/50 property division to give something back to one of the parties who owned an asset or assets prior to marriage.
The gray area is of course the in between length of the marriage from 7 years to 20 years. As you are closer to the short end of the stick, the more probable of convincing the trial court to deviate from 50/50 property division to award the asset back to the person who owned the asset prior to marriage, and as you get to the short of the end the stick, the more unlikely that the court would deviate from 50/50.
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 sweat it out if they get a divorce. If you are married less than 7 to 10 years you have a fighting chance, but no guarantee. If you are married more than 20 years, it is probably a complete lost cause. The 10-20 year length of marriage is a toss up, but as the marriage length gets into the 12, 15, 18 year length, probably very unlikely and improbable to convince the court of deviating from 50/50.
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.
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Milwaukee, WI 53226
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