2010aras
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Reged: 11/20/10
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A friend of mine is going through a divorce in Wisconsin. His ex is asking for half of his retirement. He has an ESOP which was established 16 years before they were married and he has never paid anything into it. My question is would that be considered pre-marital property?
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d2njti
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Reged: 03/05/08
Posts: 187
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An ESOP is an asset just like any other stock ownership. If he purchased it prior to the marriage and never made additional purchases, it would be considered separate property. If he held ownership of the stock in a retirement account, she might be able to argue for a claim under their settlement agreement.
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Maury
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Reged: 06/02/04
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Loc: This Asylum --->
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Under Wisconsin law, all assets are presumed marital. The burden of proving a non-marital characteristic is on the party making the claim. Premarital assets are not considered a classification of non-marital or separate property under Wisconsin law unless acquired by inheritance or gift.
Under Wisconsin Statutes 767.61(2)(a) 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:
1. As a gift from a person other than the other party.
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.
3. With funds acquired in a manner provided in subd. 1. or 2
The court under statute must presume that all property not described above is to be divided equally between the parties. However, the court may alter this distribution without regard to marital misconduct after considering certain factors which include the property brought to the marriage by each party. As a result, it is in the discretion of the court to grant a greater share of the ESOP to the party that brought it into the marriage, but it is not a given.
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