Divorce Attorneys | Brookfield

Marital property includes, with some exceptions, all assets acquired after a certain date – the “determination date” – which can be either the date of marriage, the date when both became residents of Wisconsin or January 1, 1986, when this law was passed.

“Survivorship marital property” are assets that, when one spouse dies, pass directly to the surviving spouse as opposed to passing to a named beneficiary under a last will and testament. An example of this is a home titled to both spouses (and only them).

“Deferred marital property” is a complex topic, but generally applies to assets that would be considered marital property but were gained before the spouses’ determination date. Under Wisconsin’s Marital Property Act, a surviving spouse has certain rights to assets considered deferred marital property.

The short answer is yes, you can still retain individual property once you are married. In most cases, this is property that you owned prior to the marriage. Other types of individual property include personal gifts and inheritance. An asset that is considered individual property is completely owned and controlled by that individual. One important note: all individual property must be documented in a way that makes it clear that it belongs solely to that individual, otherwise it is considered marital property.

Yes. Throughout the duration of a marriage, what was once individual property may become blended with marital property and, under Wisconsin’s Marital Property Act, may inadvertently become marital property unless carefully recorded.

A simple example is a personal savings account. Say you had a savings account before you were married and continued to contribute to the savings account after marriage. If you contribute portions of the income you earn during the marriage (which is considered marital property), the account becomes mixed property. As you move forward earning interest and withdrawing money from the account to pay for joint expenses, it becomes extremely difficult to draw the line between the amount in the account that is individual property and what is considered marital property.

Another example: say you owned 200 shares of stock before marriage. You purchase no additional shares but the stock grows in value over time. That stock and any additional value it made are individual property.

Once again, if you want to retain individual property after marriage, be sure to keep detailed records that clearly indicate your ownership.

The relative benefits or risks of the Marital Property Act on one’s credit largely depends on whether a couples shares the same values and goals.

The Marital Property Act allows the lesser or non-earning spouse access to credit based on the value of all marital property, including the income of the higher-earning spouse. Debts incurred by one spouse during a marriage are also considered the responsibility of both spouses, meaning creditors can collect on not only the individual debtor’s property but all marital property.

If you and your spouse are not on the same page when it comes to credit, you may consider a marital property agreement, which limits a spouse’s obligation for the other’s debts. However, you must share a copy of this agreement with a creditor before taking out lines of credit.

When you pass away, your “estate” will comprise one half of all marital property plus any individual property you owned. It is up to you to choose who will acquire your estate after your death. Where this gets complicated is if one spouse wishes to leave a tangible asset, such as a family home, to a certain beneficiary then passes away while the other spouse is still living. In that case, the surviving spouse would co-own the home with whomever the other spouse dictated as a beneficiary. It is worth it to get on the same page with your spouse about who will benefit from the marital property once you pass away.

If you do not have a will, your entire estate will pass on to your spouse. An exception to this is if you have children from a prior relationship. In that case, your surviving spouse inherits half of your marital and individual property and your children (whether from your previous or current relationship) inherit the rest.

If you have paid into life insurance and retirement both before and during a marriage, certain formulas are in place to calculate what should be considered marital and individual property. If you’ve named beneficiaries on these accounts, they will pass directly to the beneficiary rather than through a will. Be mindful that a spouse may still have a claim to part of your life insurance’s death benefit even if you name a different beneficiary, such as children from a previous relationship.

A spouse has the right, under the Marital Property Act, to half of the deferred retirement benefits of the other, but is not allowed to will these benefits away if they pass away first. In this case, the surviving spouse retains all of their own deferred retirement benefits.

If a spouse’s name is on the title of something considered marital property only if that spouse’s name is on the title and the value is less than $1,000 or another “reasonable” amount based on the economic position of the couple. If both spouses agree, the gift can be of any amount. If the gift exceeds a reasonable amount and is contested by one spouse, the matter can be settled in court.

Disagreements happen in every marriage. If you and your spouse disagree about what should happen with assets that are considered marital property and can’t settle them on your own, you can go to court. Here are some common examples:

• As described above, if one spouse gifts marital property exceeding a “reasonable” value to a third party
• Adding or removing one spouse’s name to a title
• Seeking a professional accounting review of your joint financial situation

The Marital Property Act is in effect during a marriage and upon the death of a spouse. Other laws come into effect when property is divided as a result of divorce.

A marital property agreement is a safeguard if a couple disagrees about matters relating to credit. In this case, one spouse’s debts cannot cause creditors to go after the other’s assets. A marital property agreement is also applicable for couples that want to keep their assets separate or wish to have individual property reallocated as marital property.

Having an experienced attorney on your team can help you make the best decision for you and your spouse when it comes to marital property agreements.

At Ohiku Law, we pride ourselves in providing expert legal advice and services on topics like marital property law, divorce law, family court, and much more. We serve clients in Brookfield and surrounding communities – give us a call to get started today.