Wisconsin Divorce Property Division

What the Law Says

Wisconsin is one of 9 community property states — property acquired during the marriage belongs to both spouses. On divorce, the community estate is divided equally unless a specific exception applies. Property owned before the marriage, gifts, and inheritances generally stay with the original owner.

Wisconsin is a community property state operating under the Marital Property Act. On divorce, Wis. Stat. §767.61(3) presumes that all property not excluded under §767.61(2) is to be divided equally between the parties, but the court may alter that division — without regard to marital misconduct — after weighing thirteen statutory factors, §767.61(3)(a)-(m). Property acquired by gift or inheritance (or with such funds) is excluded from division unless refusing to divide it would create a hardship, in which case the court may divide it in a fair and equitable manner (§767.61(2)).

Division Factors (Wis. Stat. §767.61)

What Wisconsin courts weigh:

1. Statutory presumption that all property not excluded under §767.61(2)(a) is divided equally between the parties; the court may alter the distribution without regard to marital misconduct after considering the (3)(a)-(m) factors (Wis. Stat. §767.61(3))
2. Excluded from division: property acquired by gift, by reason of another's death (bequest/inheritance, payable-on-death or transfer-on-death arrangements, right of survivorship, trust distribution, employee benefit plan, IRA), or with funds so acquired — unless refusal to divide creates hardship, in which case the court may divest in a fair and equitable manner (§767.61(2)(a)-(b))
3. Length of the marriage (§767.61(3)(a))
4. Property brought to the marriage by each party (§767.61(3)(b))
5. Whether one of the parties has substantial assets not subject to division by the court (§767.61(3)(c))
6. 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)(d))
7. Age and physical and emotional health of the parties (§767.61(3)(e))
8. Contribution by one party to the education, training or increased earning power of the other (§767.61(3)(f))
9. 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 (§767.61(3)(g))
10. 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)(h))
11. Amount and duration of maintenance and family-support orders, and whether the property division is in lieu of such payments (§767.61(3)(i))
12. Other economic circumstances of each party, including pension benefits, vested or unvested, and future interests (§767.61(3)(j))
13. Tax consequences to each party (§767.61(3)(k))
14. Any written agreement made by the parties before or during the marriage concerning property distribution — binding on the court unless its terms are inequitable as to either party (§767.61(3)(L))
15. Such other factors as the court may in each individual case determine to be relevant (§767.61(3)(m))

Common Questions