Can I protect my property in the event I get divorced?
People get married at different stages in their life. Unfortunately, not all marriages last, and actions for divorce are filed. Through the divorce process your assets and debts will be divided. While states vary in how property division is handled, in Wisconsin (a community property state) there is a presumption of equal division. This means that all property acquired during the marriage is subject to being divided equally.
Now, as is the case with all rules, there are also exceptions. If an individual wants to protect his/her assets from equal division, the best way to do so is through a premarital agreement, which is drafted prior to exchanging nuptials. This document establishes rights to property owned or acquired both prior to and during the marriage and in contemplation of a divorce.
Without a premarital agreement, it is difficult to retain property acquired during the marriage as your own. The best way to proceed, in this scenario, is for spouses to reach an amicable resolution and avoid judicial intervention. When such resolutions are not reached, exhaustive and often expensive litigation may result.
Without premarital agreements and amicable resolutions, the determination of whether property is marital turns on how it is identified and characterized. According to Wisconsin statute, property that is gifted or inherited may be exempt from marital division. The initial burden on how the property was acquired falls on the individual making the assertion of gifted or inherited property. That burden can be accomplished by providing supporting documentation to prove how the property was acquired. Absent any proof, the property in question may not be considered separate, and therefore subject to division.
When you cannot substantiate property and you lack legal documentation to protect it, you face the reality of dividing the property in question equally through the divorce proceeding. During this process, you are required to complete a financial disclosure statement. This becomes the most significant document in a divorce. When it is filed with the court, you are indicating that all of your assets and debts have been disclosed. If a particular item is omitted by design, but later revealed, you could face sanctions as a consequence.
While Wisconsin presumes marital property is to be divided equally, there is still a chance to have an unequal division awarded. Courts have within their sound discretion an ability to deviate from the presumptive equal division. In doing so, Courts must consider several factors. These factors are contained under §767.61(3), which can be found here.
Ultimately, property is more likely than not to be divided equally through a divorce proceeding. While exceptions and exemptions exist, they usually require planning or proof, which can oftentimes be difficult for an unrepresented individual to express efficiently in Court.
Here at J.G. Law, we have the experience and knowledge to assist our clients in maximizing the marital estate. If a spouse tries to distort the value of property, we are competent in determining its true value.
For a free consultation to determine how your case measures up to the presumptive equal property division, or to find out whether you have an exception or exemption that applies, call us today!