766.51(10)
(10) At the death of a spouse if property described under
s. 766.70 (3) (a),
(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.
766.53
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)(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 Annotation
Sub. (2) (c) bars use of marital property income to satisfy pre-marital obligations, including modification of support or maintenance under ch. 767. In re Marriage of Burger v. Burger, 144 W (2d) 514, 424 NW (2d) 691 (1988).
766.55 Annotation
While (2) (c) 2 precludes department of health and social services from satisfying liable family member's pre-marital or pre-Act debt from non-liable member's income, it does not preclude department from considering non-liable member's income in determining liable member's ability to pay under Chapter 46. In Interest of A.L.W., 153 W (2d) 412, 451 NW (2d) 416 (1990).
766.55 Annotation
Under sub. (2) (cm) neither an innocent spouse nor an innocent spouse's insurer is liable for tort obligations of a tortfeasor spouse. Bothe v. American Family Ins. Co., 159 W (2d) 378, 464 NW (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 Medical Center v. Brody, 186 W(2d) 100, 519 NW (2d) 713 (Ct. App. 1994).
766.55 Annotation
The obligation of support is imposed under s. 765.001 and is not relieved simply because s. 766.55 (2) (a) may not apply. Sinai Samaritan Medical Center, Inc. v. McCabe, 197 W (2d) 709, 541 NW (2d) 190 (Ct. App. 1995).
766.55 Annotation
Necessaries and family purpose debts. Rubenzer. Wis. Law. Oct. 1996.
766.555
766.555
Obligations of spouses under open-end plans. 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)(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)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)(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)(a)(a) The recording, under
s. 59.43 (1) (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)(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)(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 Annotation
Creditor's failure to provide non-applicant spouse notice under (3) (b) does not prevent obligation from being classified as marital and does not affect creditor's right to recovery; non-applicant spouse's only remedy is under (4) (b). Park Bank-West v. Mueller, 151 W (2d) 476, 444 NW (2d) 754 (Ct. App. 1989).
766.565
766.565
Relationship to consumer act. 766.565(1)
(1) In this section, "open-end credit plan" has the meaning given under
s. 421.301 (27). The term includes only those plans governed by
chs. 421 to
427.
766.565(2)
(2) Except as provided under
sub. (6), this section does not impose any additional or separate notice requirements on a creditor.
766.565(3)
(3) The spouse of a person who incurs an obligation described under
s. 766.55 (2) (b) and governed by
chs. 421 to
427 may exercise rights and remedies available to the incurring spouse under
chs. 421 to
427.
766.565(4)
(4) Section 422.305 does not apply to the spouse of a person who incurs an obligation described under
s. 766.55 (2) (b) unless that spouse also signs the writing evidencing the credit transaction or a separate guarantee or similar instrument and unless the other requirements of
s. 422.305 are met.
766.565(5)
(5) The spouse of a person who establishes an open-end credit plan that may result in an obligation described under
s. 766.55 (2) (b) may terminate the plan by giving written notice of termination to the creditor. A writing evidencing an open-end credit plan may include a provision that authorizes the creditor to declare the account balance due and payable upon receipt of notice of termination, notwithstanding
s. 425.103 or
425.105. Notice of termination does not affect the liability of the incurring spouse or the availability of the incurring spouse's interest in marital property or other property of that spouse to satisfy obligations incurred under the open-end credit plan, both before and after the notice of termination. Subject to the limits under
s. 422.4155 (1), the terminating spouse's interest in marital property continues to be available under
s. 766.55 (2) (b) to satisfy obligations incurred in the interest of the marriage or family both before and after notice of the termination. A creditor may consider in its evaluation of subsequent applications for credit the fact that a prior open-end credit plan offered by the creditor and entered into by the applicant spouse has been terminated under this subsection.
766.565(6)
(6) Written notice to a spouse under
s. 422.415 (2) (a) or
(c) concerning an increase in the rate of finance charge is not effective with respect to the interest of the nonincurring spouse in marital property unless notice is given to both spouses. Notice is considered given on the date it is mailed by the creditor. The notice 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 the spouses that the envelope contains important information for both spouses.
766.565(7)
(7) With respect to consumer credit transactions, the division of banking may promulgate rules to interpret this chapter and
chs. 421 to
427, consistent with the purposes and policies of this chapter and
chs. 421 to
427.
766.565 History
History: 1985 a. 37;
1995 a. 27.
766.57
766.57
Protection of bona fide purchasers dealing with spouses. 766.57(1)(a)
(a) "Bona fide purchaser" means a purchaser of property for value who was not knowingly a party to fraud or illegality affecting the interest of the spouses or other parties to the transaction, does not have notice of an adverse claim by a spouse and acted in the transaction in good faith.
766.57(1)(b)
(b) "Purchase" means to acquire property by sale, lease, discount, negotiation, mortgage, pledge or lien, or otherwise to deal with property in a voluntary transaction other than a gift.
766.57(1)(c)
(c) A purchaser gives "value" for property acquired in return for a binding commitment to extend credit, as security for or in total or partial satisfaction of a preexisting claim, by accepting delivery pursuant to a preexisting contract for purchase, or, generally, in return for any consideration sufficient to support a simple contract.
766.57(2)
(2) Notice of the existence of a marital property agreement, a marriage or the termination of a marriage does not affect the status of a purchaser as a bona fide purchaser.
766.57(3)
(3) Marital property purchased by a bona fide purchaser from a spouse having the right to manage and control the property under
s. 766.51 is acquired free of any claim of the other spouse and of any claim asserted through or under the other spouse. The effect of this subsection may not be varied by a marital property agreement.
766.57 History
History: 1983 a. 186;
1985 a. 37.
766.575
766.575
Protection of trustees dealing with spouses. 766.575(1)(b)
(b) "Governing instrument" means the contract or other instrument pursuant to which a trustee has possession or control of property. The term includes, in the case of trustees whose rights, duties and responsibilities are fixed by court order or statute or both, the court order and the applicable statutory provisions as modified by any court order, as they would apply if this chapter had not been enacted.
766.575(1)(c)
(c) "Notice of claim" means a written notice, by or on behalf of a spouse, former spouse, surviving spouse or person claiming under a deceased spouse's disposition at death, that the person claims to be entitled to property in the trustee's possession or control, specifying the portion of property to which the claim relates.
766.575(1)(d)
(d) "Property" includes, in addition to the meaning given under
s. 766.01 (15), any proceeds of property, any income earned on property or derived from property and any income or proceeds derived from proceeds or income previously received and reinvested.
766.575(2)
(2) Except as provided in
sub. (3), in a court order or in the terms of a trust, the classification of property in the possession or control of a trustee shall not affect the trustee's right and duty to administer, manage and distribute the property in accordance with the terms of the governing instrument and the trustee may rely on and act in accordance with those terms.
