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♦ Lacking a Premarital Agreement, Wisconsin Marital Property Law Presumes Acquired Wealth To Be Equal at Time of Divorce

♦ Lacking a Premarital Agreement, Wisconsin Marital Property Law Presumes Acquired Wealth To Be Equal at Time of Divorce

Wisconsin has a marital property law which is based on a view of marriage as an equal partnership. It does not matter if one spouse’s efforts are more significant in the creation or acquisition of assets than the other spouse, the marital property law presumes that the acquired wealth during a marriage to be equal. This law probably has it greatest significance at the time of termination of the marriage due to death or divorce. Upon divorce, the assets will be presumed to be divided on a 50/50 basis even if significant assets were owned prior to the marriage. Individual property owned prior to marriage becomes marital when it is commingled with marital property, most often this marital property is the income generated by the party during the marriage. For example, if someone owns a home with a mortgage prior to marriage and then continues to pay on this mortgage with marital income, the classification of the home becomes marital. Upon divorce, the value of the home will be considered an asset which should be divided on an equal basis. Although the Court can deviate from the 50/50 if such seems to be equitable, the court’s decision would be a subjective decision. The one way to avoid this problem is for the parties to take advantage of the marital property law which allows parties to define their partnership differently from a 50/50, equal partnership. A marital property agreement entered into prior to marriage, often referred to as prenuptial agreement, can define your partnership rights and obligations different from the marital property law. For example, you can protect in the divorce process individual property acquired before the marriage even if additional contribution or appreciation to the...