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What Is Marital Property and How Is It Divided?

The following three categories are considered marital or community property:

  1. All income received during the marriage
  2. All property obtained during the marriage that used income earned during the marriage (Even if the property was bought separately, but used for the benefit of the marriage)
  3. All debts incurred during the marriage

The following assets are considered separate property:

  1. Gifts received by anyone but the spouse
  2. Inheritance
  3. Property owned by either spouse before the marriage

Wisconsin is a community property state which means that all marital assets are subject to being divided equally between the two parties. From there, the court may determine that one spouse should absorb more of the assets or debt based on past efforts and the future needs of the spouses.

Other areas courts consider when spouses separate are the tax obligations of spouses splitting assets and filing under a different tax bracket. This comes into effect when the earning power in a marriage is uneven, and the lower earning spouse wouldn’t be able to afford taking on the taxes and other expenses of large assets, such as land/buildings or other property with additional taxes associated with it. If an even agreement of asset ownership can’t be executed, then the courts may step in and order the spouses to sell the assets that can’t be divided and split the profits after all debt is re-paid. There can be exceptions to the general rules. “Separate property” may become “marital property” depending on how people utilized the asset.

The best way of avoiding a lengthy negotiating process is to work out a marital property agreement between the two spouses and their lawyers and submit the agreement to the judge. An example of this: a couple would sell their house and split profits after the mortgage was paid off. The husband would keep his daily commuting vehicle and retirement account. The wife would keep her daily commuting vehicle and retirement account. The judge will then focus on dividing assets that can’t be agreed on.

A divorce is a lengthy process and you should always consult a lawyer before signing or agreeing to anything. Schedule an appointment with us today. We have over 46 years of experience in Wisconsin law and hold ourselves to the highest levels of integrity.

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