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WI is a marital property state. Can the parties in a divorce come to an agreement that is not a 50-50 division of property?

Middleton, WI |

I have been married for three years. I am concerned about protecting my pension and the house that I purchased prior to our marriage. Will a judge accept a financial settlement that does not equally divide these assets if both parties consent?

Attorney Answers 3

Posted

Absolutely. If the parties agree to an unequal division of property it is highly unlikely that the court will reject the agreement. In the situation where you and your spouse cannot agree, you have a pretty good argument that the marital estate (all property not received as a gift or inheritance either before or during marriage) should not be divided equally given the length of marriage. There are quite a few factors to consider in rebutting the general presumption of equal division. You should speak to an experienced family law attorney in your area. Hope this helps.

My answer does not make me your attorney or create a former-client/current-client relationship with you. I encourage you to speak with an attorney before acting upon any of the statements I make. If you would like to speak with me further about your issue, please schedule a free initial consultation (in person or over the phone) by calling my office at (920) 459-8490, or by emailing me at info@klpplaw.com. You can also visit www.klpplaw.com for more information.

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Posted

I think that a judge would likely approve such an agreement. Be prepared to prove that the assets were obtained/accrued prior to the marriage and that that is your basis for agreeing to a deviation from the presumption of equal division.

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Posted

In short, I'd echo Attorney Pasquale's answer, but with a tiny clarification: If the parties agree to an unequal division of property it is highly unlikely that the court will reject the agreement assuming that the Court is convinced both sides know what they're doing and weren't forced into it. Generally speaking, courts care that a settlement agreement is entered into voluntarily and that one side isn't forcing a settlement or pulling a fast one on the other side; they don't care as much who gets what. The way they see it, if someone chooses to agree to an uneven deal knowingly and intelligently, it's their own fault for doing it. Plus, who's to say what is and isn't "equal value" in a division, particularly since the "value" could be measured financially or emotionally?

You should definitely work on this with an attorney, if you don't already have one. If you pick one who practices regularly in the family courts in your county, he or she will probably have a good idea as to what your judge will and won't accept in a Marital Settlement Agreement. But if your soon-to-be-ex is OK with the division, it should pass muster with the court.

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4 comments

Asker

Posted

I know that a short-term marriage is one justification for unequal division. What other factors are relevant? My spouse chose to not to work at several points throughout our marriage (and was not at home caring for children.) My spouse also used drugs and engaged in domestic abuse. (I have a protective order.) Are these factors relevant?

Andrew Joel Golden

Andrew Joel Golden

Posted

Wisconsin is a no-fault divorce state, so the reasons for divorcing (domestic abuse, drug use) aren't relevant to that. I'm sure if you looked around enough you could find some clever divorce attorney who could spin those items into some justification, but my gut tells me most courts are going to say that your ex-to-be could have pushed little old ladies into oncoming traffic and it still doesn't justify screwing your ex on the division of property. Whereas you're looking at this from an emotional standpoint, you need to remove your feelings from the equation and focus on the pure financials. As I said in my answer, the point is not to look for justifications; the point is to craft a Marital Settlement Agreement that both parties agree to, and the court won't get involved absent evidence of coercion. If you can't agree and go to trial on it, then your arguments should center around the "assets prior to marriage" argument, not the "he/she attacked me and smoked pot, so I deserve more" argument.

Asker

Posted

Excuse me, sir. I never said anything about screwing my ex. I want a settlement that is fair to both of us, thank you very much.

Andrew Joel Golden

Andrew Joel Golden

Posted

I wasn't suggesting you were saying that that was your intent. I'm saying that the court wouldn't view it as justifying an otherwise uneven distribution regardless of what argument a lawyer came up with. As I said, when dividing the assets, focus on what a neutral person would say wasn't an uneven distribution. That's the safest way to ensure a court won't shoot the agreement down for some reason.

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