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Educational Blog

Treatment of Pre-Marital and Separate Assets in a Wisconsin Divorce

On Aug 29, 2018

One of the most frequently asked questions divorce attorneys hear is “How will our assets and debts be divided in the divorce?” In Wisconsin, the presumption is that all property owned by the spouses, or either of them individually, is marital property – regardless of how it is held or titled. Wisconsin is a community property state, which means that property is typically divided down the middle with one-half going to each spouse. That presumption can be overcome, but it is where all Wisconsin courts start.

Assets and Liabilities Can Be Marital or Non-Marital

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Although a divorcing couple’s assets and liabilities are initially presumed to be marital property, certain assets (and sometimes debts) may be categorized as “non-marital” or “separate” property. Those assets or liabilities typically remain with the owner spouse, who retains all rights to the assets after the divorce.

 
Examples of separate property include:
  • Inherited Assets. If you received an inheritance in your name alone from a deceased family member, whether before or after you got married, and if those assets were held separately from your marital assets, those assets may be treated as separate property.
  • Gifts. Assets you received as a gift from a third party individually, as opposed to assets gifted to you and your spouse together as a couple, may also be protected from division.
  • Pre-Marital Assets and Liabilities. If you brought assets into the marriage, or if your spouse brought substantial debts into the marriage, you may be able to claim they belong to one of you but not the other. You may be more successful in your claim if it was a short-term marriage or if your contributions to the marriage were significantly greater than your spouse’s contributions.

Documentation is Needed

If you intend to claim that certain assets (or liabilities) are the separate property of you or your spouse, you will need to be able to provide solid evidence that backs up your claim.

For example, sales receipts or recorded documents dated earlier than your wedding date could be used as evidence that certain assets are pre-marital property. A well-documented paper trail for inherited assets, such as a copy of a will and/or trust receipt and signed statement classifying income as individual property signed at the time of receipt, can help bolster an assertion that such assets are not subject to division.

Actions that May Turn Separate Property into Marital Property

A mistake that many people make in a divorce is that they assume that because they brought assets into the marriage that may have been identifiable at one time as separate property, they think they will automatically be able to keep all of those assets as separate property – even after the assets have been spent down or commingled with other assets.

When non-marital property is commingled with the couple’s assets, it generally becomes marital property. For example, if you had shares of stock in your name alone before you got married but added them to a joint brokerage account after your wedding and they remained in a joint account throughout your marriage, the stock will likely be subject to the presumptive 50/50 division.

If, instead, you kept that pre-marital stock in your name in an individual account throughout the marriage, you might be able to prevail on a claim that it should be treated as separate property if there are other factors that the court feels warrant a deviation from the statutory presumption.

The character of pre-marital property can be changed in other ways. For example, if you bought a house before your marriage in your name alone but then paid the mortgage payments and other expenses out of marital assets throughout your marriage, you will likely not be successful in claiming that the entire value of the house should be treated as separate property in your divorce.

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Talk to a Skilled Family Law Attorney About Your Case

The division of marital and non-marital assets and liabilities can be complex and stressful. Working with an experienced, knowledgeable Wisconsin divorce lawyer can make the entire process easier and smoother.

To schedule an initial consultation with a skilled, compassionate family law attorney, contact Schott, Bublitz & Engel, s.c. in Waukesha today online, or call us at 262.827.1700.

AnnMarie Sylla

By AnnMarie Sylla

Attorney AnnMarie M. Sylla focuses her practice on representing clients across southeastern Wisconsin in litigation and family law including complex cases involving divorce, paternity, modifications of child custody and placement, child support and maintenance disputes. Attorney Sylla is known for her passion in fighting for her clients’ interests.

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