Division of Property

In every divorce, the court must divide the parties’ property. The parties can reach an agreement regarding who gets what property, or the judge will make the decision. The term “property” in this context includes debt, as well as personal property, retirement accounts, real estate, investments, and all other assets. Property division in Wisconsin is governed by Section 767.61 of the family law statutes.

In Wisconsin, property division starts with the following presumption: all property owned by either or both of the parties is combined and then divided equally between the parties. It does not matter whether the property was acquired before or after the marriage, or whether the property is titled to both parties or only one; all property is lumped together for division.

There are three major exceptions to this presumption that all property is equally divided.

  • Property that one of the parties acquired by gift or inheritance remains the recipient’s separate property – as long as the property has remained reasonably separate and identifiable.
  • The court may deviate from equal division, awarding one party more property than the other, after considering the factors listed at Wis. Stat. Section 767.61(3). For example, if your marriage was short and you entered the marriage with significantly more property than did your spouse, the court may award you more than half of the property under the factors.
  • If the parties entered a Prenuptial Agreement regarding division of property, the court is required to honor that agreement unless the court finds that the agreement is inequitable.

We prepare balance sheets for property division in both MS Excel and Corel Quatro Pro formats. With these balance sheets you can list all of your property and debts and begin to come up with a proposal for property and debt division. You can download our balance sheets by clicking here. Keep in mind that equal division of property does not mean that each party gets one-half of each piece of property; rather, each party gets one-half of the net value of the total estate. Thus, for example, one party could keep most of the debt and most of the property, resulting in an equal property division.

Once you have prepared your property division proposal, you may want to make use of a financial mediator to help you and your spouse resolve property issues. In Dane County, attorneys with experience in this area volunteer their time, offering one mediation session for a $75 administration fee.