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WISCONSIN PROPERTY SETTLEMENT

by Attorney Gordon S. Johnson, Jr.

In each divorce case, the Court must make a division and allocation of the parties property and liabilities, this is called the property settlement or more properly, the property division. In general, the court will make the property division so that both parties have approximately the same net worth after such division. As with all divorce issues, there are many and sometimes significant exceptions to this general rule.

Included in the property that will be divided, is the personal property of the parties, such as cars, clothing, jewelry, stocks, investments, the real estate of the parties and also pension and profit sharing plans and IRA's. Likewise, the debts of the parties are also factored in, often by awarding the net value of an asset, such as a house, after subtracting any debt.

In most cases, the battles will be fought over valuation of the assets and also, which party will be awarded what. When settlements can not be reached, courts often have significant difficulty is finding a mechanism to balance the division, as many divorces involve division of marital estates that are cash poor, that is to say, what equity the parties have is tied up in assets that are not easily sold. In such cases, a court may order one party pay off the property division over a period of time.

The cases which are exceptions to the presumption that property divisions are to be on a 50/50 basis, usually fall into one of two categories: 1) where substantial assets of one party were gifted or inherited and 2) where there is a short term marriage, and one of the parties owned substantial assets before the marriage. In the first situation, the party owning the gifted or inherited property is usually allowed to keep such property, without a balancing offset. The second situation is more complex, because even though all pre-marital property is considered property which is part of the marital estate and thus subject to division, the court can look at a short marriage length as a factor justifying a non 50/50 division. The shorter the marriage, the more likely it is that a court will allow a person to keep that which they brought into the marriage.

As with all of the other issues, the court is required by the legislature to consider all relevant factors, before making an award.

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