Brazil & Benske, LLC

How property division works in a divorce

If you are getting ready for a divorce, property division likely ranks among the several important concerns you will need to deal with. Wisconsin is a community property state, which means courts divide assets based on the assumption that each spouse gets half of the marital assets.

However, this process rarely plays out as simply as it sounds. Some assets may remain separate and therefore stay out of division altogether. In many situations, courts will also consider factors that can outweigh the 50/50 presumption.

What property stays separate

Generally, only property that one spouse receives as a gift or inheritance remains separate. Unlike other states, Wisconsin considers property either spouse acquires before marriage as a marital asset. If one spouse does own separate property, it can still turn into a marital asset if that spouse does not make sure to keep it separate from any marital uses.

When courts order an unequal division

Several factors can cause the court to order an uneven asset division. These include the length of the marriage, the spouses' relative contributions, whether one spouse has significant separate assets, tax consequences, the spouses' relative earning abilities, health and ages. The court may also award the family home to one spouse over the other if it has good reason to do so; for example, the best interest of the children may necessitate them remaining in the home with the spouse who has more custody time.

What happens to debt

When it comes to debt, courts usually apply the same equal division rule, even if one spouse incurs the bulk of the dept. However, some exceptions do exist, such as gambling addiction, where the court will usually not make the other spouse pay half.

How spouses get control of the division process

Divorcing spouses do not have to leave property division to the courts. Courts will usually enforce an existing prenuptial agreement, so long as its provisions do not break the law and do not contain extreme unfairness. Divorcing spouses can also choose to come to an agreement, through mediation or other means, on some or all division issues and submit their agreement for the court's approval.

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