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Knowing the Difference Between Marital and Separate Property

 Posted on February 22, 2022 in Divorce

b2ap3_thumbnail_Meganweb.jpgBy: Attorney Megan Drury

Wisconsin is a community property state, meaning that most property acquired by a married couple belongs equally to both. During a divorce, marital property is to be divided equally. This usually means 50/50, although there are a few reasons the court might deviate from this standard. One of the first steps of property division during divorce is sorting through all property owned by the spouses in order to determine what is marital property and what is separate property. Certain types of property acquired during the marriage by one spouse could be considered separate property. Conversely, some property owned by one spouse alone before the marriage could be considered marital property and subject to division during divorce. 

Making this determination can be complicated. You will likely need to enlist an attorney to help you sort this out if you are going through a divorce. 

What is Considered Separate Property or Marital Property in Wisconsin?

The general rule is that any property acquired by the spouses during the marriage is marital property, regardless of whose name it is in or whose income was used to purchase it. However, there are a few exceptions. The following types of property acquired during the marriage by one spouse remains their separate property: 

  • Inheritance - As long as the testamentary gift was made specifically to one spouse, and kept separately by the recipient, the other spouse would not have a claim to it during divorce proceedings. However, if the recipient-spouse co-mingles the inheritance with marital funds, such as by depositing it into a joint account and using it to benefit the marriage, it may no longer be separate property. 

  • Gifts - If a gift was made to one spouse specifically, like a birthday present, it belongs strictly to that spouse. The same exception that applies to inheritances also applies to gifts, particularly monetary gifts. 

Usually, property that one spouse already owned before the marriage is their own separate property not subject to division during divorce proceedings. Again, however, there is an exception if that separate property has been co-mingled with marital property. 

For example, assume that Spouse A owned a car before entering the marriage. During the marriage, Spouse B  habitually drives Spouse A’s car to get to work. Spouse B spends a significant amount of time or money fixing up the car so that its value increases. The car may no longer be considered separate property because Spouse B contributed to the increased value of the vehicle. 

Contact a Wisconsin Divorce Attorney

Gimbel, Reilly, Guerin & Brown, LLP can help to protect your interests when you are going through a divorce. Our Milwaukee divorce lawyers will strive to make sure you keep your separate property as well as your fair share of marital assets. Call 414-271-1440 for a free consultation. 





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