When a couple divorces, their marital assets must be divided between them. Wisconsin is one of nine community property states, including Arizona and California. Under Wisconsin law, this means that generally spouses will be entitled to receive half of the marital assets when they divorce. State law also sets forth exceptions for separate property and circumstances in which equal division is inappropriate.
Under Wisconsin's Marital Property Act of 1986, marital property will be divided equally in a divorce, regardless of whether one spouse earns significantly more money than the other or one spouse does not earn any income at all. All assets are classified with a determination date. This is the date when the property is considered to be marital property. The determination date is usually the date of the marriage, but may also be the date the spouses became Wisconsin residents if they were married or lived in another state. Any property the spouses acquire during the marriage is classified as community property. If a spouse claims that an asset is separate property, he has the burden of proving it meets Wisconsin's requirements for separate property classification.
Not all property is automatically classified as marital property. Under Wisconsin law, spouses may have separate property that will not be divided pursuant to a divorce. Separate property is any property acquired by one spouse prior to the marriage. It remains with that spouse after divorce. Also, any property acquired by one spouse by gift or inheritance, even during the marriage, is separate property belonging to only that spouse.
Transmutation of Property
In Wisconsin, separate property can become marital property, making it subject to equal division between the spouses. For separate property to remain separate property, it must never be commingled or mixed with marital assets. For example, if one spouse receives a gift of $10,000 from her grandmother, she must deposit the funds into a separate bank account in her name only. If the funds are deposited into a joint bank account with her spouse, the inheritance transmutates from separate property into marital property. The same occurs if one spouse inherits a house and adds the other spouse's name to the deed. A spouse can protect his separate property by making sure he is the only one to control or possess it.
Although spouses are generally entitled to 50 percent of the marital assets, a court does not simply divide everything in half. If one spouse maintains ownership and possession of the family home, the other spouse may receive a bank account or other property of equal value to her share of the family home. Also,when there are items of personal property that neither spouse wants, the court will order them to be appraised and sold; each spouse then receives half the proceeds.
A Wisconsin court, at its discretion, may determine that equal division is unfair. In that case, the court will examine several factors to determine the most fair and equitable distribution of marital property. It will consider the length of the marriage, spouses' ages and health conditions, value of each spouse's separate property, and each spouse's role in the marriage and income or ability to earn income. Other important factors include which spouse has custody of the children, who wants to maintain possession of the family home and the amount of child support the non-custodial parent is required to pay. Courts in Wisconsin will distribute property without regard to a spouse's misconduct during the marriage, including adultery or abandonment.