Equal interests in marital property and debt

A sound marriage is considered a partnership of equals. This idea is the basis for Wisconsin’s Marital Property Act which was enacted in 1986. This law presents both benefits and pitfalls. The Martial Property Act is a complex law that is full of exceptions.

Why was the Marital Property Act Passed?

If only one spouse earns a salary or both draw an income but one earns more than the other, the law recognizes that both spouses contribute to supporting the marriage. The law states that whatever the couple acquires during the marriage should belong to the equally. This can have certain advantages. An example is a non-employed spouse has easier access to credit and each spouse can make individual decisions about bequeathing assets.

What is marital property?

Marital property includes all income and possessions (with certain exceptions) that a couple acquires after their “marriage date”.

Can I still have property that’s my own?

Yes, you can have individual property. This is usually a personal gift or inheritance which is considered individual property no matter when it was received. You must have records that prove property solely belongs to you in order for it to be considered individual property. The law will otherwise presume that all property owned by spouses is marital property that belongs to both of you equally.

Can individual property unintentionally become marital property?

Yes. Over the course of a marriage, individual and marital property can get jumbled together. The law presumes that this mixed property is entirely marital unless records prove that some portion is individual property.

How does this affect my will?

Upon your death, your estate will consist of your individual property as well as half of all marital property. You can leave your estate to whomever you choose.

Just remember that your spouse will own half of the marital property with your beneficiary.

What if I have no will?

If you have no will, your entire estate will go to your surviving spouse unless you have children from outside your marriage. Your spouse will then get half the marital property and half of your individual property. The rest of the estate will go to your children, both from this marriage and from outside of it.

What if my spouse and I disagree about marital property?

You could go to court to seek legal remedies if you have disagreements you can’t settle.

How does the law affect divorce?

The law doesn’t affect divorce. The Martial Property Act applies during the marriage and upon a spouse’s death. There are other laws in Wisconsin that cover the division of divorce property.

Should we consider a marital property agreement?

If you and your spouse disagree on credit matters, you both may want such an agreement in place.

A marital property agreement can also serve other purposes. You both may wish to avoid the marital property system. You may want to keep some or all of your property separate as individual property or you may wish to have some or all of your individual property reclassified as marital property.

A marital property agreement will allow you to either opt into or out of the marital property law. Deciding which option is a smart move for you depends on factors such as your tax situation and estate planning needs. An experienced and knowledgeable attorney will assist you in sorting out the best options and also draft the agreement.

The agreement must be in writing and signed by both spouses voluntarily.

You may be able to hire one attorney on both spouse’s behalf to assist in drafting the agreement. It is better for each spouse to have their own attorney if the agreement would seriously affect one spouse’s property rights.