Separate property is generally property that a spouse acquired before marriage—or acquired by gift or inheritance during marriage—and is not subject to division upon divorce. In contrast, marital property is generally property that is acquired during marriage, is jointly owned by the spouses, and is subject to division upon divorce—whether the spouses reside in (1) an equitable distribution or common law property state or (2) in a community property state.

Community property states generally include Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. In these states, divorce courts generally start with the presumption that the marital property is owned equally by the spouses and will be divided equally upon divorce.

In other states—so-called equitable distribution or common law property states—the divorce court attempts to divide the spouses’ assets equitably (fairly) and may consider a spouse’s separate property in deciding to make an unequal division of the spouses’ marital property. In practice, the difference between the division of assets in community property states and in equitable distribution states is sometimes not as great as it may seem, as the court in a community property state may have the discretion to divide the spouses’ community property on a 60-40, 70-30, or other unequal basis.

In Wisconsin, which is a community property state, the law presumes that all property acquired during the marriage is owned equally by both spouses and should be divided equally upon divorce. This includes income, assets, and debt accumulated during the marriage. Separate property, such as assets acquired before marriage or received as a gift or inheritance during the marriage, is generally not subject to division in a divorce. However, it is important to note that while the starting point for division is equal, Wisconsin courts do have the discretion to divide marital property unequally if it is deemed fair and equitable to do so based on the circumstances of the case. Factors that may influence this decision include the length of the marriage, the age and health of each spouse, and contributions to the marriage, among others. It is also worth noting that the distinction between community property and separate property can sometimes be complex, and the characterization of property can be affected by various factors, such as commingling of assets.