Chapter 766

766.31 Annotation Irreconcilable Differences: Income From Separate Property Under Divorce Law and Under Wisconsin’s Marital Property Act. Bascom. 70 MLR 41 (1986).

766.31 Annotation The effects of the Wisconsin Marital Property Act on trusts: Whose property is it? Kusky. WBB Mar. 1985.

766.51 766.51 Management and control of property of spouses.

766.51(1) (1) A spouse acting alone may manage and control:

766.51(1)(a) (a) That spouse’s property that is not marital property.

766.51(1)(am) (am) Except as provided in subs. (2) and (3), marital property held in that spouse’s name alone or not held in the name of either spouse.

766.51(1)(b) (b) Marital property held in the names of both spouses in the alternative, including marital property held in a form designating the holder by the words “(name of one spouse) or (name of other spouse)”.

766.51(1)(d) (d) A policy of insurance if that spouse is designated as the owner on the records of the policy issuer.

766.51(1)(e) (e) Any right of an employee under a deferred employment benefit plan that accrues as a result of that spouse’s employment.

766.51(1)(f) (f) A claim for relief vested in that spouse by other law.

766.51(1m) (1m) 

766.51(1m)(a) (a) Notwithstanding any provision in this section except par. (b), for the purpose of obtaining an extension of credit for an obligation described under s. 766.55 (2) (b), a spouse acting alone may manage and control all of the marital property.

766.51(1m)(b) (b) Unless the spouse acting alone may otherwise under this section manage and control the property, the right to manage and control marital property under this subsection does not include the right to manage and control marital property described in s. 766.70 (3) (a) to (d) or the right to assign, create a security interest in, mortgage or otherwise encumber marital property.

766.51(2) (2) Spouses may manage and control marital property held in the names of both spouses other than in the alternative only if they act together.

766.51(3) (3) The right to manage and control marital property transferred to a trust is determined by the terms of the trust.

766.51(4) (4) The right to manage and control marital property permits gifts of that property, subject to remedies under this chapter.

766.51(5) (5) The right to manage and control marital property does not determine the classification of property of the spouses and does not rebut the presumption under s. 766.31 (2).

766.51(6) (6) The enactment of this chapter does not affect the right to manage and control any property of either or both spouses acquired before the determination date.

766.51(7) (7) A court may appoint a conservator or guardian under ch. 54 to exercise a disabled spouse’s right to manage and control marital property.

766.51(8) (8) This section does not affect s. 706.02 (1) (f).

766.51(9) (9) If an executory contract for the sale of property is entered into by a person having the right of management and control of the property, the rights of all persons then having or thereafter acquiring an interest in the property under this chapter are subject to the terms of the executory contract. This subsection applies to contracts entered into before or after the determination date.

766.51(10) (10) At the death of a spouse if property described under s. 766.70 (3) (a), (aL), (b), or (d) is held by either spouse, but not in the names of both spouses, such property may be subject to the management and control of the holding spouse as provided under s. 857.015.

766.51 History History: 1983 a. 186; 1985 a. 37; 1987 a. 393; 2005 a. 387; 2021 a. 258.

766.53 766.53 Gifts of marital property to 3rd persons. A spouse acting alone may give to a 3rd person marital property that the spouse has the right to manage and control only if the value of the marital property given to the 3rd person does not aggregate more than either $1,000 in a calendar year, or a larger amount if, when made, the gift is reasonable in amount considering the economic position of the spouses. Any other gift of marital property to a 3rd person is subject to s. 766.70 (6) unless both spouses act together in making the gift. Under this section and for the purpose of s. 766.70 (6) (a), in the case of a gift of marital property by a spouse to a 3rd person in which the donor spouse has retained an interest, the gift shall be valued at the full value of the entire transfer of marital property, regardless of any retained interest or interest donated to the other spouse. For purposes of this section only, a gift of a life insurance policy by a spouse to a 3rd person shall be valued at the amount payable under the policy if the insured died at the time the gift was made.

766.53 History History: 1983 a. 186; 1985 a. 37.

766.55 766.55 Obligations of spouses.

766.55(1) (1) An obligation incurred by a spouse during marriage, including one attributable to an act or omission during marriage, is presumed to be incurred in the interest of the marriage or the family. A statement separately signed by the obligated or incurring spouse at or before the time the obligation is incurred stating that the obligation is or will be incurred in the interest of the marriage or the family is conclusive evidence that the obligation to which the statement refers is an obligation in the interest of the marriage or family, except that the existence of that statement does not affect any interspousal right or remedy.

766.55(2) (2) After the determination date all of the following apply:

766.55(2)(a) (a) A spouse’s obligation to satisfy a duty of support owed to the other spouse or to a child of the marriage may be satisfied only from all marital property and all other property of the obligated spouse.

766.55(2)(b) (b) An obligation incurred by a spouse in the interest of the marriage or the family may be satisfied only from all marital property and all other property of the incurring spouse.

766.55(2)(bm) (bm) An obligation incurred by a spouse that is recoverable under s. 46.27 (7g), 2017 stats., or s. 49.496, 49.682, or 49.849 may be satisfied from all property that was the property of that spouse immediately before that spouse’s death.

766.55(2)(c) (c)

766.55(2)(c)1. 1. An obligation incurred by a spouse before or during marriage that is attributable to an obligation arising before marriage or to an act or omission occurring before marriage may be satisfied only from property of that spouse that is not marital property and from that part of marital property which would have been the property of that spouse but for the marriage.

766.55(2)(c)2. 2. An obligation incurred by a spouse before, on or after January 1, 1986, that is attributable to an obligation arising before January 1, 1986, or to an act or omission occurring before January 1, 1986, may be satisfied only from property of that spouse that is not marital property and from that part of marital property which would have been the property of that spouse but for the enactment of this chapter.

766.55(2)(cm) (cm) An obligation incurred by a spouse during marriage, resulting from a tort committed by the spouse during marriage, may be satisfied from the property of that spouse that is not marital property and from that spouse’s interest in marital property.

766.55(2)(d) (d) Any other obligation incurred by a spouse during marriage, including one attributable to an act or omission during marriage, may be satisfied only from property of that spouse that is not marital property and from that spouse’s interest in marital property, in that order.

766.55(2m) (2m) Unless the dissolution decree or any amendment to the decree so provides, no income of a nonincurring spouse is available for satisfaction of an obligation under sub. (2) (b) after entry of the decree. Marital property assigned to each spouse under that decree is available for satisfaction of such an obligation to the extent of the value of the marital property at the date of the decree. If a dissolution decree provides that the nonincurring spouse is responsible for satisfaction of the obligation, the obligation may be satisfied as if both spouses had incurred the obligation.

766.55(3) (3) This chapter does not alter the relationship between spouses and their creditors with respect to any property or obligation in existence on the determination date. An obligation of a guarantor, surety or indemnitor arising after the determination date under a guaranty or contract of indemnity or surety executed before the determination date is an obligation in existence on the determination date.

766.55(4) (4) Any written consent signed by a creditor which diminishes the rights of the creditor provided in this section is binding on the creditor.

766.55(4m) (4m) Except as provided under s. 766.56 (2) (c), no provision of a marital property agreement or of a decree under s. 766.70 adversely affects the interest of a creditor unless the creditor had actual knowledge of that provision when the obligation to that creditor was incurred or, in the case of an open-end plan, as defined under s. 766.555 (1) (a), when the plan was entered into. If a creditor obtains actual knowledge of a provision of a marital property agreement or decree after an obligation is incurred or an open-end plan is entered into, the provision does not adversely affect the interest of the creditor with respect to that obligation or plan, including any renewal, extension, modification or use of the obligation or plan. The effect of this subsection may not be varied by a marital property agreement or a decree. This subsection does not affect the application of ch. 706.

766.55(5) (5) This chapter does not affect the exemption of any property of spouses from availability for satisfaction of an obligation, provided by other law.

766.55(6) (6) Subsections (2) and (2m) and s. 859.18 do not affect the satisfaction of an obligation of a spouse from collateral or other security for that obligation.

766.55(7) (7) Property available under this chapter to satisfy an obligation of a spouse is available regardless of whether the property is located in this state or whether this chapter no longer applies because one or both spouses are no longer domiciled in this state.

766.55(8) (8) After the death of a spouse, property is available for satisfaction of obligations as provided in s. 859.18.

766.55 History History: 1983 a. 186; 1985 a. 37; 1987 a. 393; 2013 a. 20, 92; 2019 a. 9; 2021 a. 239 s. 74.

766.55 Annotation Sub. (2) (c) bars the use of marital property income to satisfy pre-marital obligations, including modifications of support or maintenance under ch. 767. Burger v. Burger, 144 Wis. 2d 514, 424 N.W.2d 691 (1988).

766.55 Annotation While sub. (2) (c) 2. precludes the state from satisfying a liable family member’s pre-marital or pre-Marital Property Act debt from a non-liable member’s income, it does not preclude the Department of Health and Social Services from considering the non-liable member’s income in determining the liable member’s ability to pay under ch. 46. J.G.W. v. Outagamie County Department of Social Services, 153 Wis. 2d 412, 451 N.W.2d 416 (1990).

766.55 Annotation Under sub. (2) (cm), neither an innocent spouse nor an innocent spouse’s insurer is liable for the tort obligations of a tortfeasor spouse. Bothe v. American Family Insurance Co., 159 Wis. 2d 378, 464 N.W.2d 109 (Ct. App. 1990).

766.55 Annotation The presumption that a debt is incurred in the interest of marriage does not apply to an obligation for support under sub. (2) (a), and thus sub. (2m) does not apply to obligations for spousal support. St. Marys Hospital Medical Center v. Brody, 186 Wis. 2d 100, 519 N.W.2d 706 (Ct. App. 1994).

766.55 Annotation The obligation of support is imposed under s. 765.001 and is not relieved simply because sub. (2) (a) may not apply. Sinai Samaritan Medical Center, Inc. v. Mc Cabe, 197 Wis. 2d 709, 541 N.W.2d 190 (Ct. App. 1995), 95-0012.

766.55 Annotation The definition of “creditor” under s. 766.01 (2r) does not apply to sub. (4m). A judgment creditor is a creditor for purposes of sub. (4m) and must have notice of the marital property agreement at the time the misconduct resulting in the judgment occurs in order for the agreement to be effective against the creditor. Journal Sentinel, Inc. v. Schultz, 2001 WI App 260, 248 Wis. 2d 791, 638 N.W.2d 76, 00-2595.

766.55 Annotation A creditor’s right to reach property subject to division in a divorce is not determined by s. 767.255 [now s. 767.61], but is driven solely by the classification into which the obligation falls under this section. A restitution order imposed by a criminal judgment for conversion was an obligation resulting from a tort committed by the incurring spouse under sub. (2) (cm). Whether an obligation resulted from a tort requires examination of the spouse’s conduct that gave rise to the claim made. An individual’s conduct may constitute a tort without a civil judgment so concluding. Sokaogon Gaming Enterprise Corp. v. Curda-Derickson, 2003 WI App 167, 266 Wis. 2d 453, 668 N.W.2d 736, 02-0924.

766.55 Annotation Necessaries and Family Purpose Debts. Rubenzer. Wis. Law. Oct. 1996.

766.55 Annotation After the Split: The Marital Property Act’s Effects on Debt After Marriage. Pagel. Wis. Law. Nov. 2007.

766.555 766.555 Obligations of spouses under open-end plans.

766.555(1) (1) In this section:

766.555(1)(a) (a) “Open-end plan” means credit extended on an account pursuant to a plan under which the creditor may permit a spouse to make purchases or obtain loans, from time to time, directly from the creditor or indirectly by use of a credit card, check or other device, as the plan may provide.

766.555(1)(b) (b) “Open-end plan” includes only those open-end plans entered into by a person whose spouse is not a party to the account.

766.555(2) (2) 

766.555(2)(a) (a) This subsection applies to spouses for whom the determination date is 12:01 a.m. on January 1, 1986.

766.555(2)(b) (b) Unless additional property is available under par. (c), an obligation incurred by a spouse on or after January 1, 1986, under an open-end plan entered into by that spouse before January 1, 1986, may be satisfied only from property of that spouse that is not marital property and from that part of marital property that would have been the property of that spouse but for the enactment of this chapter.

766.555(2)(c) (c)

766.555(2)(c)1. 1. An obligation described under s. 766.55 (2) (b) incurred by a spouse on or after January 1, 1986, under an open-end plan entered into by that spouse before January 1, 1986, may be satisfied only from property of that spouse that is available under par. (b) and, if the creditor gives written notice complying with this paragraph to both spouses prior to the date the obligation is incurred, from all marital property.

766.555(2)(c)2. 2. The notice under subd. 1. shall describe the nature of the open-end plan and state that an obligation described under s. 766.55 (2) (b) that is incurred under the open-end plan may be satisfied from all marital property of the spouses, including the income of both spouses, and from the property of the incurring spouse that is not marital property.

766.555(2)(c)3. 3. The notice under subd. 1. is considered given on the date it is mailed by the creditor.

766.555(2)(c)4. 4. The notice under subd. 1. may be enclosed in an envelope addressed to the incurring spouse at the last-known address of that spouse appearing on the records of the creditor if a statement appears on the face of the envelope alerting both spouses that the envelope contains important information for both spouses.

766.555(3) (3) 

766.555(3)(a) (a) This subsection applies to persons for whom the determination date is after 12:01 a.m., January 1, 1986.

766.555(3)(b) (b) Except as provided under par. (c), an obligation incurred by a spouse after the determination date for that spouse, under an open-end plan entered into by that spouse before that determination date, may be satisfied only from all property of that spouse that is not marital property and from that part of marital property which would have been the property of that spouse but for the enactment of this chapter.

766.555(3)(c) (c) An obligation described under s. 766.55 (2) (b) incurred by a spouse after the determination date for that spouse under an open-end plan entered into by that spouse before that determination date may be satisfied from all marital property and all other property of the incurring spouse.

766.555 History History: 1985 a. 37.

766.56 766.56 Credit transactions with married persons.

766.56(1) (1) If a spouse applies for credit that will result in an obligation described under s. 766.55 (2) (b), the creditor, in evaluating the spouse’s creditworthiness, shall consider all marital property available under s. 766.55 (2) (b) to satisfy the obligation in the same manner that the creditor, in evaluating the creditworthiness of an unmarried credit applicant, considers the property of an unmarried credit applicant available to satisfy the obligation.

766.56(2) (2) 

766.56(2)(a) (a) The recording, under s. 59.43 (1c) (r), of a marital property agreement or a unilateral statement or revocation under s. 766.59 does not constitute actual or constructive notice to 3rd parties. This paragraph does not affect the application of ch. 706.

766.56(2)(b) (b) A creditor shall include in every written application for an extension of credit that is governed by chs. 421 to 427 a notice that no provision of a marital property agreement, a unilateral statement under s. 766.59 or a court decree under s. 766.70 adversely affects the interest of the creditor unless the creditor, prior to the time the credit is granted, is furnished a copy of the agreement, statement or decree or has actual knowledge of the adverse provision when the obligation to the creditor is incurred. The notice requirement under this paragraph does not apply to renewals, extensions or modifications or the use of an open-end credit plan.

766.56(2)(c) (c) If the applicant spouse in any credit transaction discloses the existence of a currently effective marital property agreement or a decree issued under s. 766.70 and provides a copy of it to the creditor prior to the time credit is granted or, in the case of an open-end plan, as defined under s. 766.555 (1) (a), prior to the time the open-end plan is entered into, the creditor is bound by any property classification, characterization of an obligation, or management and control right contained in the agreement or decree. If a spouse discloses the existence of an agreement or decree after credit is granted or an open-end plan is entered into, the creditor is not bound under this paragraph by the agreement or decree with respect to that obligation or open-end plan, including any renewals, extensions, modifications or use of the obligation or open-end plan.

766.56(2)(d) (d) When a person applies for credit, the creditor may inquire as to whether the person is married, unmarried or separated, under a decree of legal separation.

766.56(3) (3) 

766.56(3)(a) (a) In this subsection, “extends credit” means that an open-end credit plan, as defined under s. 421.301 (27), is established after the determination date, or that credit other than open-end credit is extended after the determination date. The term does not include renewals, extensions, modifications or the use of an open-end credit plan. This subsection does not apply to an open-end credit plan described under s. 766.555 (2) or (3).

766.56(3)(b) (b) Except as provided in par. (c), if a creditor extends credit to a spouse in a credit transaction governed by chs. 421 to 427 and the extension of credit may result in an obligation described under s. 766.55 (2) (b), the creditor shall give the nonapplicant spouse written notice of the extension of credit before any payment is due. The notice requirement may be satisfied by providing a copy of the instrument, document, agreement or contract evidencing the obligation to pay or any required credit disclosure which is given to the applicant spouse, or by providing a separate writing briefly describing the nature of the credit extended. Notice is considered given on the date it is mailed to the address of the nonapplicant spouse provided to the creditor by the applicant spouse. If the applicant spouse informs the creditor that the spouses reside at the same address, the notice may be enclosed in an envelope addressed to the nonapplicant spouse or both spouses.

766.56(3)(c) (c) Notice is considered given under par. (b) if the nonapplicant spouse has actual knowledge that the credit is extended or waives the notice requirement in a signed writing.

766.56(4) (4) 

766.56(4)(a) (a) Any financial organization or any other credit-granting commercial institution that violates sub. (1) is subject to the penalties under s. 138.20.

766.56(4)(b) (b) Except as provided in par. (c), a creditor that fails to give notice under sub. (2) (b) is liable to each applicant spouse in the amount of $25. Except as provided in par. (c), a creditor that fails to give notice under sub. (3) is liable to the nonapplicant spouse in the amount of $25.

766.56(4)(c) (c) A creditor is not subject to a penalty under par. (b) if the creditor shows by a preponderance of the evidence that failure to give notice was unintentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid such error.

766.56 History History: 1983 a. 186; 1985 a. 37 ss. 100 to 108, 187; 1995 a. 201; 2015 a. 196.

766.56 Annotation A creditor’s failure to provide the non-applicant spouse notice under sub. (3) (b) does not prevent the obligation from being classified as marital and does not affect the creditor’s right to recovery. The non-applicant’s only remedy is under sub. (4) (b). Park Bank-West v. Mueller, 151 Wis. 2d 476, 444 N.W.2d 754 (Ct. App. 1989).

766.565 766.565 Relationship to consumer act.