Wisconsin

The following is a summary of the procedures and laws relating to divorces in Wisconsin. If you have questions regarding your rights and obligations in a divorce, we encourage you to contact an attorney. The following is provided for general informational purposes only, and is not a substitute for the advice of an attorney.

Residency Requirements For Divorce Actions: You or your spouse must have been a resident of Wisconsin for 6 months and of the county in which you file for 30 days immediately prior to filing where the divorce is filed. No hearing on the divorce will be scheduled until 120 days after the defendant is served the summons or after the filing of a joint petition. [Wisconsin Statutes Annotated; Sections 767.05 and 767.083].

No-Fault Divorce — Requirements: The irretrievable breakdown of your marriage may be established by: (1) a joint petition by both spouses requesting a divorce on these grounds; (2) living separate and apart for 12 months immediately prior to filing; or (3) if the court finds an irretrievable breakdown of the marriage with no possible chance at reconciliation.

Joint Petition For Divorce: You and your spouse may file a joint petition for divorce, in which you both consent to personal jurisdiction of the court and waive service of process. A copy of a guide to Wisconsin Court procedures for obtaining a divorce is to be provided to the spouses upon filing for divorce. In all cases, a financial disclosure form must be filed. Also, if children are involved, an official child support form (which is available from the court clerk) must be filed with the petition. In addition, separation agreements are specifically authorized by law. Finally, in cases in which both spouses agree that the marriage is broken and have agreed on all material issues, the case may be held before a family court commissioner. [Wisconsin Statutes Annotated; Sections 766.58, 767.081, 767.085, 767.10, 767.13, and 767.27].

Community Property: Wisconsin is a “community property” state. There is a presumption that all marital property should be divided equally. Marital property is all of the spouse’s property except separate property consisting of: (1) property inherited by either spouse; (2) property received as a gift by either spouse; or (3) property paid for by funds acquired by inheritance or gift. The equal distribution may be altered by the court, without regard to marital misconduct, based on the following factors: (1) the contribution of each spouse to the acquisition of the marital property, including the contribution of each spouse as homemaker; (2) the value of each spouse’s separate property; (3) the length of the marriage; (4) the age and health of the spouses; (5) the occupation of the spouses; (6) the amount and sources of income of the spouses; (7) the vocational skills of the spouses; (8) the employability and earning capacity of the spouses; (9) the federal income tax consequences of the court’s division of the property; (10) the standard of living established during the marriage; (11) the time necessary for a spouse to acquire sufficient education to enable the spouse to find appropriate employment; (12) any premarital or marital settlement agreements; (13) any retirement benefits; (14) whether the property award is instead of or in addition to maintenance; (15) any custodial provisions for the children; and (16) any other relevant factor. The court may also divide any of the spouse’s separate property in order to prevent a hardship on a spouse or on the children of the marriage.

Under the Wisconsin Statutes, spouses are permitted to enter into agreements in which they resolve their property issues in connection with the dissolution of their marriage. However, they may not adversely affect the rights of the children of the marriage to receive child support to which the children would otherwise be entitled.

766.58 Marital property agreements.

1. A marital property agreement shall be a document signed by both spouses. Only the spouses may be parties to a marital property agreement. A marital property agreement is enforceable without consideration.
2. A marital property agreement may not adversely affect the right of a child to support.
3. Except as provided in ss. 766.15, 766.55 (4m), 766.57 (3) and 859.18 (6), and in sub. (2), in a marital property agreement spouses may agree with respect to any of the following:
   1. Rights in and obligations with respect to any of either or both spouses’ property whenever and wherever acquired or located.
   2. Management and control of any of either or both spouses’ property.
   3. Disposition of any of either or both spouses’ property upon dissolution or death or upon the occurrence or nonoccurrence of any other event.
   4. Modification or elimination of spousal support, except as provided in sub. (9).
   5. Making a will, trust or other arrangement to carry out the marital property agreement.
   6. Providing that upon the death of either spouse any of either or both spouses’ property, including after-acquired property, passes without probate to a designated person, trust or other entity by nontestamentary disposition. Any such provision in a marital property agreement is revoked upon dissolution of the marriage as provided in s. 767.375 (1) . If a marital property agreement provides for the nontestamentary disposition of property, without probate, at the death of the 2nd spouse, at any time after the death of the first spouse the surviving spouse may amend the marital property agreement with regard to property to be disposed of at his or her death unless the marital property agreement expressly provides otherwise and except to the extent property is held in a trust expressly established under the marital property agreement.
   7. Choice of law governing construction of the marital property agreement.
   8. Any other matter affecting either or both spouses’ property not in violation of public policy or a statute imposing a criminal penalty.

   (3m) Chapter 854 applies to transfers at death under a marital property agreement.

4. A marital property agreement may be amended or revoked only by a later marital property agreement.
5. Persons intending to marry each other may enter into a marital property agreement as if married, but the marital property agreement becomes effective only upon their marriage.
6. A marital property agreement executed before or during marriage is not enforceable if the spouse against whom enforcement is sought proves any of the following:
   1. The marital property agreement was unconscionable when made.
   2. That spouse did not execute the marital property agreement voluntarily.
   3. Before execution of the marital property agreement, that spouse:
      1. Did not receive fair and reasonable disclosure, under the circumstances, of the other spouse’s property or financial obligations; and
      2. Did not have notice of the other spouse’s property or financial obligations.
7. 1. Unless the marital property agreement expressly provides otherwise, a marital property agreement that classifies a deferred employment benefit plan or an individual retirement account as marital property does not affect the operation of s. 766.62 (5).
   2. Unless the marital property agreement expressly provides otherwise, marital property agreement that classifies as marital property the noninsured spouse’s interest in a policy that designates the other spouse as the owner and insured does not affect the operation of s. 766.61 (7) . In this paragraph, “owner” has the meaning given in s. 766.61 (1) (a) and “policy” has the meaning given in s. 766.61 (1) (c).
8. The issue of whether a marital property agreement is unconscionable is for the court to decide as a matter of law. In the event that legal counsel is retained in connection with a marital property agreement the fact that both parties are represented by one counsel or that one party is represented by counsel and the other party is not represented by counsel does not by itself make a marital property agreement unconscionable or otherwise affect its enforceability.
9. 1. Modification or elimination of spousal support during the marriage may not result in a spouse having less than necessary and adequate support, taking into consideration all sources of support.
   2. If a marital property agreement modifies or eliminates spousal support so as to make one spouse eligible for public assistance at the time of dissolution of the marriage or termination of the marriage by death, the court may require the other spouse or the other spouse’s estate to provide support necessary to avoid that eligibility, notwithstanding the marital property agreement.
10. If the spouses agree in writing to arbitrate any controversies arising under this chapter or a marital property agreement, the arbitration agreement is enforceable under ch. 788.
11. Married persons or persons intending to marry each other may record marital property agreement in the county register of deeds office under s. 59.43 (1) (r).
12. 1. A provision of a document signed before the determination date by spouses or unmarried persons who subsequently married each other, which provision affects the property of either of them and is enforceable by either of them without reference to this chapter, is not affected by this chapter except as provided otherwise in a marital property agreement made after the determination date.
    2. If a provision or an amendment to a provision in a document described under par. (a) is intended to negate, apply or modify any right or obligation which may be acquired under 1983 Wisconsin Act 186, 1985 Wisconsin Act 37, or a community property system, the provision or amendment is enforceable after the determination date if the document was enforceable when executed or, if it is executed after April 4, 1984, either was enforceable when executed or would be enforceable if it were executed after the determination date.
    3. This subsection does not affect a marital property agreement executed under s. 766.585.
13. 1. With respect to a provision of a marital property agreement that is effective upon or after dissolution of the marriage or termination of the marriage by death, any statute of limitations applicable to enforcement of the provision is tolled until dissolution of the marriage or termination of the marriage by death, respectively.
    2. After the death of a spouse, no action concerning a marital property agreement may be brought later than 6 months after the inventory is filed under s. 858.01 . If an amended inventory is filed, the action may be brought within 6 months after the filing of the amended inventory if the action relates to information contained in the amended inventory that was not contained in a previous inventory.
    3. The court may extend the 6-month period under par. (b) for cause if a motion for extension is made within the applicable 6-month period.
14. Limitations on the effect of marital property agreements for state income tax purposes are set forth in ch. 71.

History: 1983 a. 186; 1985 a. 37, 403; 1991 a. 301; 1993 a. 160, 213; 1995 a. 201; 1997 a. 188; 2005 a. 443 s. 265.

NOTE: 1991 Wis. Act 301, which affected this section, contains extensive legislative council notes.

Whether property agreements are inequitable under s. 767.255 (11) [now s. 767.61 (3) (L)] is discussed. Button v. Button, 131 Wis.2d 84, 388 N.W.2d 546 (1986).

An annuity that transferred ownership from the owner to a “co-annuitant” on the owner’s death was a joint account under s. 705.04 (1) and a contractual agreement that creates a nonprobate transfer under s. 705.20 (1). Both will defeat a marital agreement that does not make the transfer. Reichel v. Jung, 2000 WI App 151, 237 Wis.2d 853, 616 N.W.2d 118, 99-1211.

Spouses may affirmatively waive the homestead protection in s. 706.02 (1) (f) in a premarital agreement. Jones v. Estate of Jones, 2002 WI 61, 253 Wis.2d 158, 646 N.W.2d 280, 01-1025.

No provision of sub. (3) or 705.20 permits parties to ignore ch. 854, or to agree to prohibit court involvement in implementing a marital property agreement. That “Washington Will” provisions permit transfer of property without probate does not mean the legislature allowed parties to agree to no court involvement in implementing transfer of ownership and creating a reliable and public record of transfer. Maciolek v. City of Milwaukee Employes’ Retirement System Annuity and Pension Board, 2006 WI 10, 288 Wis. 2d 62, 709 N.W.2d 360, 04-1254.