There is often confusion as to how property is divided in a divorce or legal separation in the State of Wisconsin. Reading what the Wisconsin Statute says is the best place to start to get guidance on how things may be decided in your individual case.
Section 767.61 Property division (2005), reads:
767.61(1)
(1) Division required. Upon every judgment of annulment, divorce, or legal separation, or in rendering a judgment in an action under s. 767.001 (1) (h), the court shall divide the property of the parties.
767.61(2)
(2) Property subject to division.
767.61(2)(a)
(a) Except as provided in par. (b), any property shown to have been acquired by either party prior to or during the course of the marriage in any of the following ways shall remain the property of that party and is not subject to a property division under this section:
767.61(2)(a)1.
1. As a gift from a person other than the other party.
767.61(2)(a)2.
2. By reason of the death of another, including, but not limited to, life insurance proceeds; payments made under a deferred employment benefit plan, as defined in s. 766.01 (4) (a), or an individual retirement account; and property acquired by right of survivorship, by a trust distribution, by bequest or inheritance or by a payable on death or a transfer on death arrangement under ch. 705.
767.61(2)(a)3.
3. With funds acquired in a manner provided in subd. 1. or 2.
767.61(2)(b)
(b) Paragraph (a) does not apply if the court finds that refusal to divide the property will create a hardship on the other party or on the children of the marriage. If the court makes such a finding, the court may divest the party of the property in a fair and equitable manner.
767.61(3)
(3) Presumption of equal division. The court shall presume that all property not described in sub. (2) (a) is to be divided equally between the parties, but may alter this distribution without regard to marital misconduct after considering all of the following:
767.61(3)(a)
(a) The length of the marriage.
767.61(3)(b)
(b) The property brought to the marriage by each party.
767.61(3)(c)
(c) Whether one of the parties has substantial assets not subject to division by the court.
767.61(3)(d)
(d) The contribution of each party to the marriage, giving appropriate economic value to each party’s contribution in homemaking and child care services.
767.61(3)(e)
(e) The age and physical and emotional health of the parties.
767.61(3)(f)
(f) The contribution by one party to the education, training or increased earning power of the other.
767.61(3)(g)
(g) The earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage.
767.61(3)(h)
(h) The desirability of awarding the family home or the right to live therein for a reasonable period to the party having physical placement for the greater period of time.
767.61(3)(i)
(i) The amount and duration of an order under s. 767.56 granting maintenance payments to either party, any order for periodic family support payments under s. 767.531 and whether the property division is in lieu of such payments.
767.61(3)(j)
(j) Other economic circumstances of each party, including pension benefits, vested or unvested, and future interests.
767.61(3)(k)
(k) The tax consequences to each party.
767.61(3)(L)
(L) Any written agreement made by the parties before or during the marriage concerning any arrangement for property distribution; such agreements shall be binding upon the court except that no such agreement shall be binding where the terms of the agreement are inequitable as to either party. The court shall presume any such agreement to be equitable as to both parties.
767.61(3)(m)
(m) Such other factors as the court may in each individual case determine to be relevant.
767.61(4)
(4) Separate fund or trust option. In dividing the property of the parties under this section, the court may protect and promote the best interests of a child of the parties described under s. 767.511 (4) by setting aside a portion of the property in a separate fund or trust for the support, maintenance, education, and general welfare of the child.
767.61(5)
(5) Related provisions of judgment. In a judgment described under sub. (1), the court shall do all of the following:
767.61(5)(a)
(a) Direct that title to the property of the parties be transferred as necessary, in accordance with the division of property set forth in the judgment.
767.61(5)(b)
(b) Include all of the following in the judgment:
767.61(5)(b)1.
1. Notification that it may be necessary for the parties to take additional actions in order to transfer interests in their property in accordance with the division of property set forth in the judgment, including such interests as interests in real property, interests in retirement benefits, and contractual interests.
767.61(5)(b)2.
2. Notification that the judgment does not necessarily affect the ability of a creditor to proceed against a party or against that party’s property even though the party is not responsible for the debt under the terms of the judgment.
767.61(5)(b)3.
3. Notification that an instrument executed by a party before the judgment naming the other party as a beneficiary is not necessarily affected by the judgment and it may be necessary to revise the instrument if a change in beneficiary is desired.
767.61(6)
(6) Recording judgment affecting real property sufficient. A certified copy of the portion of the judgment affecting title to real property, or a deed consistent with the judgment, shall be recorded in the office of the register of deeds of the county in which the real property is located.
** Entries posted on this Blog shall not be deemed legal advice. For individual attention to your particular legal situation, consult an attorney.** Attorneys Dan Murray and Barb Miller. Lawyers helping individuals with divorce, custody, placement, and family-law matters throughout Western Wisconsin and the Twin Cities eastern metro. www.millerandmurray.com
