What Property May be Excluded from the Marital Estate?

By Renee A. Read

March 31, 2016

A popular question in divorce law is what assets may be argued for exclusion from the marital estate, and therefore equal division of that asset avoided. Generally speaking, there are three circumstances that merit further evaluation: 1) gifted property, 2) inherited property, and 3) property brought to the marriage.

Wis. Stat. §767.61(2)(a) states that any property that is a gift from a person other than the other party or received by reason of death of another (including but not limited to life insurance proceeds) shall remain the property of that party. The word “shall” means that it is mandatory for the court to treat the property in that manner, as long as, of course, that the party can establish that it was actually received by gift or inheritance.  Although there is a presumption for equal division of property in Wisconsin divorce law, that presumption does not apply to gifts or inheritance.

Many people assume that they are entitled to gifts that they received from their spouse. However, as the statue clearly specifies that it covers only gifts from a person “other than the other party”, the courts generally treat gifts between spouses as marital property that is to be equally divided.  If not the asset is not actually divided, then it would still be included in the marital estate and awarded to one spouse with offset in the overall property division.

A court may deviate from an equal division of the marital estate after considering all the factors set forth in Wis. Stat. §767.61(3). One of the considerations is the “property brought to the marriage by each party.”  See Wis. Stat. §767.61(3)(b).  It is within the court’s discretion whether to have property brought to the marriage divided equally or awarded solely to the party who originally acquired it.  In my experience, the courts are more inclined to deviate from equal division when the marriage is of short duration and the asset can be easily traced and separated from an asset acquired after the date of marriage.

If you have questions about property division, it is important that you speak with an attorney regarding the specific facts of your case. The above is a general description of this issue, but each case is unique and a more in-depth analysis is recommended.

Attorney Renee A. Read Remley & Sensenbrenner, S.C. 219 E. Wisconsin Ave. Neenah, WI 54914 T: 920-725-2601

This Blog is focused on divorce and family law practice in the Fox Cities of Wisconsin, but is generally applicable for the entire state of Wisconsin.

Disclaimer: The content on this site is intended to provide general information regarding the subject matters covered. The provision of this information is not intended by the author as legal advice. If you need or desire legal advice, you should consult an attorney for advice specific to your situation. Further, laws change over time so the information should be verified before relying on it.

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