767.61.Property division.

Subch. VII: Property Division · Last amended 2021 · Current through 2025 Wisconsin Act 247 · Last verified September 8, 2026

In one sentenceSection 767.61 requires the court to divide the parties' property, exempts gifts and inheritances unless refusing to divide them would cause hardship, and presumes everything else is split equally.

Full Text of Section 767.61

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(1) DIVISION REQUIRED. Upon every judgment of annulment, divorce, or legal separation, or in rendering a judgment in an action under s. 767.001 (1) (h), the court shall divide the property of the parties.

(2) PROPERTY SUBJECT TO DIVISION. (a) Except as provided in par. (b), any property shown to have been acquired by either party prior to or during the course of the marriage in any of the following ways shall remain the property of that party and is not subject to a property division under this section: 1. As a gift from a person other than the other party. 2. By reason of the death of another, including, but not limited to, life insurance proceeds; payments made under a deferred employment benefit plan, as defined in s. 766.01 (4) (a), or an individual retirement account; and property acquired by right of survivorship, by a trust distribution, by bequest or inheritance or by a payable on death or a transfer on death arrangement under ch. 705. 3. With funds acquired in a manner provided in subd. 1. or 2. (b) Paragraph (a) does not apply if the court finds that refusal to divide the property will create a hardship on the other party or on the children of the marriage. If the court makes such a finding, the court may divest the party of the property in a fair and equitable manner.

(3) PRESUMPTION OF EQUAL DIVISION. The court shall presume that all property not described in sub. (2) (a) is to be divided equally between the parties, but may alter this distribution without regard to marital misconduct after considering all of the following:

(a) The length of the marriage.

(b) The property brought to the marriage by each party.

(d) The contribution of each party to the marriage, giving appropriate economic value to each party’s contribution in homemaking and child care services.

(e) The age and physical and emotional health of the parties.

(f) The contribution by one party to the education, training or increased earning power of the other.

(g) The earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage.

(h) The desirability of awarding the family home or the right to live therein for a reasonable period to the party having physical placement for the greater period of time.

(i) The amount and duration of an order under s. 767.56 granting maintenance payments to either party, any order for periodic family support payments under s. 767.531, 2019 stats., and whether the property division is in lieu of such payments.

(j) Other economic circumstances of each party, including pension benefits, vested or unvested, and future interests.

(k) The tax consequences to each party.

(L) Any written agreement made by the parties before or during the marriage concerning any arrangement for property distribution; such agreements shall be binding upon the court except that no such agreement shall be binding where the terms of the agreement are inequitable as to either party. The court shall presume any such agreement to be equitable as to both parties.

(m) Such other factors as the court may in each individual case determine to be relevant.

(4) SEPARATE FUND OR TRUST OPTION. In dividing the property of the parties under this section, the court may protect and promote the best interests of a child of the parties described under s. 767.511 (4) by setting aside a portion of the property in a separate fund or trust for the support, maintenance, education, and general welfare of the child.

(5) RELATED PROVISIONS OF JUDGMENT. In a judgment described under sub. (1), the court shall do all of the following:

(a) Direct that title to the property of the parties be transferred as necessary, in accordance with the division of property set forth in the judgment.

(b) Include all of the following in the judgment: 1. Notification that it may be necessary for the parties to take additional actions in order to transfer interests in their property in accordance with the division of property set forth in the judgment, including such interests as interests in real property, interests in retirement benefits, and contractual interests. 2. Notification that the judgment does not necessarily affect the ability of a creditor to proceed against a party or against that party’s property even though the party is not responsible for the debt under the terms of the judgment. 3. Notification that an instrument executed by a party before the judgment naming the other party as a beneficiary is not necessarily affected by the judgment and it may be necessary to revise the instrument if a change in beneficiary is desired.

(6) RECORDING JUDGMENT AFFECTING REAL PROPERTY SUFFICIENT. A certified copy of the portion of the judgment affecting title to real property, or a deed consistent with the judgment, shall be recorded in the office of the register of deeds of the county in which the real property is located.

End

Official Notes

Wisconsin prints certain labelled notes with the statute — effective-date notes, cross-references, and notes of the Judicial Council. They are reproduced verbatim below. The unlabelled digest of court decisions that the Legislative Reference Bureau prints after them is annotation rather than statute, and is not reproduced.

NOTE: See notes in 1985 Wis. Act 37, marital property trailer bill.

NOTE: 2005 Wis. Act 443 contains explanatory notes.

Amendment History

Wisconsin prints each section’s legislative history as a single “History” line naming every act that created or amended it, and every renumbering. It is reproduced verbatim below.

History: 1977 c. 105; 1979 c. 32 ss. 50, 92 (4); 1979 c. 196; Stats. 1979 s. 767.255; 1983 a. 186; 1985 a. 37; 1987 a. 355; 1993 a. 422; 2005 a. 443 ss. 109, 231, 232; Stats. 2005 s. 767.61; 2021 a. 35.

Plain-English Summary

On every judgment of annulment, divorce or legal separation, the court shall divide the property of the parties. Not may — shall.

What stays out. Property either party acquired, before or during the marriage, as a gift from someone other than the other party; by reason of someone's death, which the section spells out to include life insurance proceeds, payments under a deferred employment benefit plan or an individual retirement account, and property taken by survivorship, trust distribution, bequest, inheritance or a payable-on-death arrangement; or with funds acquired in either of those ways. That property remains its owner's and is not divided.

Except when it isn't. The exemption falls away if the court finds that refusing to divide would create a hardship on the other party or on the children of the marriage. Then the court may divest the owner of it in a fair and equitable manner. An inheritance is protected until protecting it would hurt a child.

Equal, presumptively. Everything else is presumed to be divided equally. The court may alter that — expressly without regard to marital misconduct — after considering the length of the marriage; what each party brought to it; whether one has substantial assets the court cannot reach; each party's contribution, with economic value given to homemaking and child care; age and health; one party's contribution to the other's education, training or earning power; earning capacity, described at length; the desirability of awarding the family home to the parent with the greater share of placement; any maintenance or family support order and whether the division stands in place of it; other economic circumstances including pension benefits vested or unvested; tax consequences; any written agreement the parties made about property, which binds the court unless its terms are inequitable and which is presumed equitable; and anything else relevant.

Loose ends. The court may set aside part of the property in a fund or trust for a child. The judgment must direct that title be transferred as the division requires, and must warn the parties of three things people routinely get wrong: that further steps may be needed to actually transfer real property, retirement benefits and contractual interests; that the judgment does not necessarily stop a creditor pursuing a party for a debt the judgment allocated to the other; and that naming the other spouse as a beneficiary before the judgment is not necessarily undone by it. A certified copy of the part affecting real property, or a deed consistent with it, is recorded with the register of deeds.

Frequently Asked Questions

Is property split down the middle in a Wisconsin divorce?

The court presumes that property not exempt under this section is divided equally, but may alter that after considering the listed factors — and expressly without regard to marital misconduct.

Is my inheritance safe in a Wisconsin divorce?

Usually. Property acquired by gift from a third party, by reason of another's death, or with funds from either, remains that party's property — unless the court finds that refusing to divide it would create a hardship on the other party or on the children of the marriage.

Does cheating affect the property split?

No. The court may alter the equal division without regard to marital misconduct.

Is a prenuptial agreement binding?

A written agreement made before or during the marriage about property distribution binds the court, except where its terms are inequitable as to either party, and the court presumes it to be equitable as to both.

Does the divorce judgment transfer my house automatically?

Not necessarily. The judgment must notify the parties that additional steps may be needed to transfer real property, retirement benefits and contractual interests, and a certified copy of the part affecting real property, or a deed consistent with it, is recorded with the register of deeds.

Source & verification. The statutory text, official notes and history are reproduced verbatim from the Wisconsin Statutes, Chapter 767 (Wis. Stat. § 767.61), published by the Wisconsin Legislative Reference Bureau. Current through 2025 Wisconsin Act 247. The plain-English summary is original and written by us. Last verified September 8, 2026. · Official source

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