Hot to Determine Family Assets

The most frequently asked questions we receive relate to property division and maintenance (which was formerly called "alimony").  The law in these areas comes from two places: (1) Laws enacted by the legislature; and (2) Law determined by the court.  Most of the time the courts determine the law when the legislature has not acted in a particularly area, or where clarification of legislative law is necessary.

Marital Property

The Wisconsin Legislature has enacted two statutes, one on property division and one on maintenance, and they are attached for your review.    According to the Wisconsin Legislature, in its enactment of Wisconsin Statute '767.255, all property at the time of the divorce is presumed to be divided equally, with the exception of gifted or inherited property, which are subject to different rules.  In other words, anything that you own or owe, as of the date of your divorce, will be equally divided.  It does not matter whether an asset is titled in one spouse's name only, or whether you owned the asset prior to your marriage.  A court may deviate from the equal division of your property, following consideration of a number of legislatively defined factors set forth in the statute.  For example, if you have had a short term marriage, where one spouse brought significantly more assets to the marriage, a court may depart from the 50/50 division of the assets, awarding more property to the spouse who entered the marriage with more.  As a practical matter, we have seen very few cases where a court has departed from an equal property division, with the exception of those cases involving very short term marriages.  Therefore, you should assume that all of your assets and debts will be divided, equally, with your spouse, as of the date your divorce is granted.

Gifted and inherited property is considered non-marital property, unless its character has somehow changed after its receipt.  For example, if one spouse has inherited money, but then uses that money as the down payment on the marital home, titled in both names, the character of the initial inheritance has been changed.  It will have lost its inherited character, and will have become marital property.  If inherited or gifted funds are commingled with marital funds, they will likewise lose their character and will be considered marital.  Only if gifted or inherited funds have been reserved, will they be classified non-marital property.  We will review these special rules with you, depending upon the particular facts of your case.

Maintenance

In most cases maintenance is the most difficult issue to resolve.  The Wisconsin Legislature has established ten factors a court will review in determining whether or not maintenance is appropriate in the particular case.  Those factors are attached for your review.  The Wisconsin court system has also spoken in this area.  The courts have said that, in cases involving long term marriages, where one spouse has assisted the other spouse in his or her career, and where there are disparate earnings at the time of the divorce, maintenance should be awarded in such an amount as to equalize the incomes between the parties.  This equalization is considered a "starting point," and a court may deviate from this, considering the particular factors of each case.  For example, if the spouse with the greater income works far in excess of 40 hours a week, then equalization of income approach may not be appropriate, in order to fully recognize the number of work hours the higher earning spouse puts in.  It has been our experience that, in most cases, the true equalization of income has not occurred because a court has chosen to consider other factors.

One of the reasons maintenance is always a difficult issue is the practical reality of a divorce.  Two people, living separately, cannot live as economically as they could together.  Two houses are simply more expensive to maintain than one.  In the majority of cases the party who seeks maintenance wants to get as much money as he or she can to preserve the marital lifestyle.  Conversely, the party obligated to pay maintenance generally prefers to pay as little as possible, not wanting to support a spouse with whom he or she does not reside.  Reaching a fair result, to both parties, is often a challenge. 

Maintenance can be unlimited, or limited to a specific number of years.  This, of course, depends on how long the recipient spouse needs support.  If, for example, a recipient spouse is in school, and will graduate to earn a good income, maintenance may be limited to the amount of years the spouse is pursuing his or her education.  In those cases where the parties divorce later in life, and one spouse has not worked outside the home for years, maintenance may be indefinite as the recipient spouse will probably never be self supporting at the type of lifestyle he or she enjoyed during the marriage.  Maintenance always terminates on the death of either party, or the remarriage of the recipient spouse.  Maintenance may always be modified, in the future, by a court based on changed circumstances of either or both of the parties.

There are some options to an award of maintenance, namely a "form of maintenance" called '71 payments, or the possibility of a "buy out" of maintenance.  Often times these "forms of maintenance" are attractive alternatives to both parties.  We will be able to discuss these alternatives with you, in greater detail, based upon the facts of your case, and your personal and financial objectives.