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Wisconsin Property Division
Property Distribution Laws in Wisconsin
In Wisconsin the courts generally accept a fair and reasonable property division the parties agree to, but if the parties cannot agree, the Circuit Court divides the marital estate within the Judgment of Divorce.
Factors in Equitable Distribution
A community property state, Wisconsin uses dual classification of marital and separate property, and the appreciation of separate property is separate. The Circuit Court divides the marital estate when the spouses cannot. Equitable means fair, not necessarily equal.
In dividing property, the court does not consider marital misconduct. According to Wisconsin Statutes - Sections: 766.01, 766.97, 767.255, the court considers:
Marital Property vs. Separate Property
In Wisconsin, property acquired or earned during the marriage is marital. Property that belongs only to one spouse before marriage is separate. Separate property also includes gifts or inheritances.
A spouse must prove that his or her claim of separate property is true because Wisconsin courts treat all property as marital. Proof means demonstrating that separate property was not mixed with marital property or used for community purposes. When the court accepts that property is separate, the property remains separate. This property cannot be awarded to the other spouse; it is not part of the community property.
Valuing and Dividing Property
First, the court classifies assets and liabilities, property and debt, as marital or separate. Then it assigns a monetary value to the marital property and debt. Finally, it distributes the marital assets between the two parties an equitable way.
The Marital Home
In Wisconsin, as in many jurisdictions, the equity of the marital home is often one of the biggest marital assets. The equity is the market value of the house, less any liabilities against the property, such as a mortgage, taxes, or home equity loans. Normally, making this calculation requires a paid real estate appraisal or a real estate agent can prepare a market analysis for free.
From there, couples choose one of three options to divide the equity:
Pensions and Retirement Accounts
Several different methods of valuation are used in determining how much a marital asset is worth, depending upon the asset to be valued and the level of agreement between the parties. Courts generally accept the value when the spouses mutually agree on a value of a particular asset. Experts may be retained by the parties or by the courts to determine the value of marital assets if the parties cannot agree. Such experts may include accountants, real estate or business appraisers, or pension valuators. The use of experts adds to the cost of the divorce.
The presumption in Wisconsin is that all property, including retirement accounts, are divided equally. For most retirement accounts - 401(k)'s, pension plans, or IRA's - the parties agree to a Qualified Domestic Relations Order (QDRO). This instrument divides these accounts. For some retirement accounts, such as military, state or county pension plans, QDRO's do not apply and other special orders are required.
In Wisconsin the court may include the retirement benefits and plans earned by both spouses as marital assets available for division. Retirement benefits vary greatly but can generally be divided into two groups:
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