Detailed Answer
Under Wisconsin law, spouses who own real estate together may divide or “partition” that property after separation even if they have not yet filed for divorce. You have two primary routes: a voluntary transfer or a court-ordered partition.
1. Voluntary Transfer
If both spouses agree, one spouse can quitclaim or deed their interest to the other. This written agreement must be signed, notarized, and recorded with the register of deeds in the county where the property sits. Once recorded, the transfer removes the grantor’s ownership interest.
2. Court-Ordered Partition
When spouses cannot agree, either one can file a partition action under Wis. Stat. § 842.01 (docs.legis.wisconsin.gov/statutes/statutes/842/01). The circuit court can:
- Divide the land in kind if physically feasible;
- Order a public sale and split the net proceeds among owners.
The court considers factors like the property’s layout, value, and each party’s share. This process can take several months and involves filing fees, service of process, and possibly a referee’s report on valuation.
3. Interaction with Divorce Proceedings
Once you file for divorce, the family court under Wis. Stat. § 767.61 (docs.legis.wisconsin.gov/statutes/statutes/767/61) gains exclusive jurisdiction over dividing marital property. If you start a partition action before divorce, the divorce court may stay (pause) it until property division occurs in the divorce. Conversely, the court may incorporate any partition agreement into the final divorce judgment.
Finally, certain property may be separate rather than marital (for example, assets acquired before marriage or received by gift or inheritance). You cannot force a partition on separate property owned solely by your spouse.
Key Takeaways: You can partition jointly owned real estate via a voluntary deed or by filing a partition action. However, once divorce is filed, the family court typically handles any property division. Planning ahead and understanding both processes helps avoid delays and extra costs.
Helpful Hints
- Confirm how title is held: tenants in common vs. joint tenants with right of survivorship.
- Discuss a written separation agreement to handle property rather than litigating.
- Obtain a professional appraisal to determine fair market value before court action.
- Check county recording fees and timelines for deeds and partition notices.
- Understand that partition actions can be contested and require formal pleadings and court hearings.
- Factor in tax implications of a property transfer or sale.
- Consult an attorney early to evaluate whether voluntary division or court proceedings best fit your situation.
Disclaimer: This article is for educational purposes only and does not constitute legal advice. Consult a qualified attorney to discuss your specific circumstances.