Property that appreciates in value, and for which the value is easily determinable, might have the opposite effect. Divorce lawyers also should encourage clients to realistically value property. Clients who place a high value on property might find that higher value working against them in later litigation by allowing creditors a greater recovery.
Divorce lawyers also should ensure that their clients do not unnecessarily place property at risk. A party with substantial individual and nondivisible property will not want to assume or be required to assume responsibility for family purpose debts. To determine how to proceed, lawyers also should make every effort to determine what debts actually exist by, for example, obtaining credit reports on their clients and asking opposing parties to provide a current report or a release to allow them to obtain one.
If questions remain about whether all debts are known, consider seeking additional awards of property to compensate for the risk of having to pay undisclosed family purpose obligations. Lawyers for creditors and debtors can discover additional assets available to satisfy debt by becoming more familiar with family court procedures and determinations. Information about what was awarded and how much it was worth, and who was determined to be responsible for an obligation, is available in the family court file.
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Lawyers should obtain a copy of the divorce decree and any incorporated marital settlement agreement, and any financial disclosure statements filed at the time of the final hearing, to find out what property was awarded and the value of the property. The judgment and incorporated agreement typically are public records available without any notice to the parties; however, financial disclosure statements are confidential by statute, 26 so a lawyer will need to file a motion or obtain a release to get the necessary information.
To ensure that their clients have the best chance of getting paid, creditors' lawyers also might want to intervene in the divorce to ask the circuit court to make income or property available to them. Such action is not unprecedented. A tort creditor, the victim of the husband's embezzlement, intervened in a divorce action in Curda-Derickson v. Derickson 27 to ask the circuit court to classify the husband's restitution order as a marital debt.
The circuit court ultimately denied the request, and the court of appeals upheld the ruling on the basis that tort debts, because they were an exception carved out in the statute, were by definition not "incurred in the interest of the family" and so could not be found to be family purpose debts under Wis. It appears that the tort creditor in Curda-Derickson only asked the circuit court and the court of appeals to classify the debt as a family purpose debt under section The creditor might have prevailed had it requested, instead, that the circuit court "provide that the nonincurring spouse [be] responsible for the obligation" under the last sentence of section Creditors owed an arguably family purpose debt might fare better intervening in divorce actions, easing the way for post-divorce collections or getting a debt paid before the divorce is finalized.
How Can I Protect My Money During a Divorce?
All lawyers representing clients with respect to credit card debts should consider getting copies of the billing statements to identify particular transactions to determine whether individual purchases have a "family purpose. Divorce lawyers and lawyers for creditors or debtors must assess the prospect of creditors reopening divorce judgments when other collection efforts fail.
Section A party who does not pay a debt assigned under the decree might find a creditor requesting an amendment to the decree to try to garnish the wages of the nonincurring spouse. Debtors' lawyers, too, must take that prospect into account when advising debtors. Many divorce decrees have "hold harmless" provisions that could result in a client having to reimburse an ex-spouse who suddenly becomes liable for a debt that was not previously allocated to that person. Divorce courts even have the power to make postbankruptcy amendments to property settlements 29 and to maintenance or support orders.
Divorce does not help the newly single debtor escape the reaches of the MPA, and the MPA's name belies the reach of that expansive law. Lawyers who represent family court litigants, creditors, or debtors need to be aware of the pull of the MPA, because a failure to know the remedies and protections provided might either needlessly expose a client to liability or prevent collection of a debt that otherwise would be paid.
A dictionary which may be used to define words when statutes do not, see In re Washington , WI , N. Obligated : To bind, compel, or constrain by a social, legal, or moral tie.
Derickson , WI App , Wis. See Wis. January 1, , is the date on which chapter went into effect. Wilson , No. Tabbert , No. Wick , No. Mary's Hosp.
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Brody, Wis. Sleight , No. Enforcement agencies may require longer record retention periods. Eckert , Wis. You may be trying to access this site from a secured browser on the server.
What to do when a spouse racks up debt
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Search the Site. Sign In. Nov 06, Archive Issue. Search Prior to Topic: Select a topic Date Range: -. Highlights Thanks to the Wisconsin Family Law Benchbook, you'll be ready for the types of questions the court might ask. Newly supplemented for Order the latest version today! Add the edition to your shelf today! Do you represent condo developers and associations, unit sellers, or unit purchasers? The Wisconsin Condominium Law Handbook is newly revised for Order your copy today!
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Obligation incurred on or after Jan. Act All rights reserved. Nov 06, Archive Issue Articles Articles. Pagel A A A Email Print Save Comments 0 Facebook Tweet linkedIn Share This: No lawyer wants a client to pay thousands of dollars of debt that the client never knew existed, and no lawyer wants to ignore the potential that a client could collect on thousands of dollars of debt from a previously unknown source.
All marital property available to satisfy?
- Wisconsin Lawyer: After the Split: The Marital Property Act's Effects on Debt After Marriage:.
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It can be property one of you got before or after you were married. It includes all kinds of property: personal property, homes and land, bank accounts, retirement accounts, etc. After the divorce is filed, things you or your spouse buy are not considered marital property. I owned my house before I got married.
Will my spouse get half of the house if we divorce? However, the court does not have to give each spouse one half of the property. If one spouse owned the house before the marriage, and the other spouse has not contributed to the house such as making payments or repairs , the court might decide that the house should not be split between the two spouses. What if my husband and I agree on dividing the property, but it is not split half and half. Will the court allow this? Yes, the court will probably approve your agreement. The court will generally approve an agreement on property settlement, even if it is not an even split.
However, you may want to state in your agreement the reason why the two of you agree to an uneven split of the property. Indiana Legal Services uses the law to fight poverty, empower clients, and improve access to justice. Please consider donating to Indiana Legal Services.
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