Someone asked me the other day if you need money, can you start selling off property in the middle of the divorce? The answer is generally no, as there is a statutory prohibition for doing so, once the divorce is filed. There are some exceptions and I will cover those as well.
WI STAT. 767.117 PROHIBITED ACTS DURING PENDENCY OF ACTION. (1) PROHIBITIONS. “In an action affecting the family, the petitioner upon filing the petition, the joint petitioners upon filing the joint petition and the respondent upon service of the petition are prohibited from doing any of the following;
(b) if the action is one under s. 767.001 (1) (a), (b), (c), (d), (h), or (i), encumbering, concealing, damaging, destroying, transferring, or otherwise disposing of property owned by either party or both of the parties, without the consent of the other party or an order of the court, except in the usual course of business, in order to secure necessities, or in order to pay reasonable costs and expenses of the action, including attorney fees.”
We know under the statue therefore, both parties are restrained from selling, giving away, trading or other disposing of individual or marital property during the divorce process, unless the other party expressly agrees (better get it in writing) or if the court permits it. A violation can result in a finding of contempt, which is covered under sec. 767.117 (3). VIOLATIONS.
(a) “Except as provided in par. (b), a party who violates any provision of sub. (1) may be proceeded against under ch. 785. for contempt of court.”
There are some limited exceptions under the statute where a party is permitted to sell property, whether their spouse agrees or not, or the court sanctioned the sale.
(1) Where done in the usual course of business. This would mean, by example, that a party to a divorce may be self employed and sells beauty products as part of their business. The other party couldn’t argue that they violated the statute by selling the products, since they do so every day as part of the business, even though technically, the business, its’ assets and products represents marital assets.
(2) In order to secure necessities. What are necessities? Food, clothing and shelter. If things are that bad financially, that a person is forced to sell personal property off to raise money to live, most likely, due to the other person not providing them any support and forcing them into a desperate financial situation, selling off marital assets to raise money for food, is an exception to the statutory prohibition.
(3) In order to pay reasonable costs and expenses of the action, including attorneys fees. Many times in divorce cases, we see an individual who has no ability to come up with money to hire a lawyer. The only way they may be able to do so, is to sell some personal property to raise money to hire the lawyer. This is allowed as an exception, within reason, under the statute.
Before selling, trading, or giving away marital property, you are well advised to talk to a divorce lawyer in advance to see what is permitted or what can get you in trouble with the court. Don’t self help. Ask an attorney first so you don’t find yourself the subject of a contempt motion where the judge is staring at you going, “what did you do here?”
If you have questions about property rights in a divorce, contact the lawyers at Karp & Iancu, S.C. for assistance.
933 N. Mayfair Rd., Suite 300
Milwaukee, WI 53226
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