767.255 Annotation
The trial court may consider a cross-purchase formula in a partnership agreement in determining the value of the partnership interest, including professional goodwill. Lewis v. Lewis,
113 Wis. 2d 172,
336 N.W.2d 171 (Ct. App. 1983).
767.255 Annotation
A lien on real estate awarded in a divorce judgment was a mortgage, not a judgment lien, even though the term "mortgage" was not used in the court order. Wozniak v. Wozniak,
121 Wis. 2d 330,
359 N.W.2d 147 (1984).
767.255 Annotation
This section does not require a judge to terminate a joint tenancy. Lutzke v. Lutzke,
122 Wis. 2d 24,
361 N.W.2d 640 (1985).
767.255 Annotation
The use of gift money to buy a home as joint tenants changed the character of the money from separate property to marital property. Weiss v. Weiss,
122 Wis. 2d 688,
365 N.W.2d 608 (Ct. App. 1985). See also Zirngibl v. Zirngibl,
165 Wis. 2d 130,
477 N.W.2d 637 (Ct. App. 1991).
767.255 Annotation
A prenuptial agreement entered into prior to the adoption of sub. (11) [now sub. (3) (L)] was enforceable in a subsequent divorce. Hengel v. Hengel,
122 Wis. 2d 737,
365 N.W.2d 16 (Ct. App. 1985).
767.255 Annotation
A premarital agreement intended to apply at death was not applicable to a divorce. Levy v. Levy,
130 Wis. 2d 523,
388 N.W.2d 170 (1986).
767.255 Annotation
Whether property agreements are inequitable under sub. (11) [now sub. (3) (L)] is discussed. Button v. Button,
131 Wis. 2d 84,
388 N.W.2d 546 (1986).
767.255 Annotation
A premarital agreement was inequitable because the parties did not fairly and reasonably disclose assets or have independent knowledge of one another's financial status. Schumacher v. Schumacher,
131 Wis. 2d 332,
388 N.W.2d 912 (1986).
767.255 Annotation
A personal injury claim for medical malpractice is property subject to division. Richardson v. Richardson,
139 Wis. 2d 778,
407 N.W.2d 231 (1987).
767.255 Annotation
The trial court may consider the former inherited status of divisible property although it has lost its exempt status through commingling. Schwartz v. Linders,
145 Wis. 2d 258,
426 N.W.2d 97 (Ct. App. 1988).
767.255 Annotation
Increase in the value of inherited property attributable to the non-owning spouse's efforts is divisible property. It is not necessary for the non-owning spouse to show that a failure to divide the asset will result in a hardship to him or her. Haldemann v. Haldemann,
145 Wis. 2d 296,
426 N.W.2d 107 (Ct. App. 1988).
767.255 Annotation
Chapter 766, the Marital Property Act, does not supplant the divorce property division provisions of ch. 767. Kuhlman v. Kuhlman,
146 Wis. 2d 588,
432 N.W.2d 295 (Ct. App. 1988).
767.255 Annotation
Gifted and inherited property is subject to division in cases of hardship. A party seeking division bears the burden of showing that failure to divide will result in financial privation. Popp v. Popp,
146 Wis. 2d 778,
432 N.W.2d 600 (Ct. App. 1988).
767.255 Annotation
A presumption exists that an injured party is entitled to all future payments under a structured settlement, but the payments are subject to the s. 767.255 factors. Krebs v. Krebs,
148 Wis. 2d 51,
435 N.W.2d 240 (1989).
767.255 Annotation
A property division may be modified under s. 806.07. However the supremacy clause prevents a division to be modified after a debt thereunder is discharged in bankruptcy. Spankowski v. Spankowski,
172 Wis. 2d 285,
493 N.W.2d 737 (Ct. App. 1992).
767.255 Annotation
When gifted or inherited property has appreciated in value during the marriage due to the efforts of both spouses, the appreciation is a part of the marital estate. Schorer v. Schorer,
177 Wis. 2d 387,
501 N.W.2d 916 (Ct. App. 1993).
767.255 Annotation
Determining fair market value of a closely-held corporation turns on the credibility of the experts as well as the methods and analyses employed by the witness. Schorer v. Schorer,
177 Wis. 2d 387,
501 N.W.2d 916 (Ct. App. 1993).
767.255 Annotation
A buy-sell agreement may provide a method for determining the value of an interest in a partnership, but does not as a matter of law establish the value. Sharon v. Sharon,
178 Wis. 2d 481,
504 N.W.2d 415 (Ct. App. 1993).
767.255 Annotation
Accounts receivable may be excluded from the marital estate if evidence indicates there is a link between the receivables and salary and that dividing the receivables would adversely affect the ability to pay support or maintain professional or personal obligations. Sharon v. Sharon,
178 Wis. 2d 481,
504 N.W.2d 415 (Ct. App. 1993).
767.255 Annotation
While income from gifted property is subject to division, trust income received by a beneficiary with only a future interest in the trust corpus is a gift itself, not income from a gift, and not subject to division. Friebel v. Friebel,
181 Wis. 2d 285,
510 N.W.2d 767 (Ct. App. 1993).
767.255 Annotation
A divorce decree that awarded 1/2 of the husband's pension to the wife divested the husband of that half interest. Although the husband had failed to effectuate the transfer as required by the divorce decree, the wife's half interest was not an asset in the husband's bankruptcy estate and there was no dischargeable debt to the wife. Dewey v. Dewey,
188 Wis. 2d 271,
525 N.W.2d 85 (Ct. App. 1994).
767.255 Annotation
Hardship under sub. (2) (b) and ``privation" under Popp requires something more than an inability to continue living at a predivorce standard. Fair and equitable is not the standard for including gifted and inherited property in a division. Doerr v. Doerr,
189 Wis. 2d 112,
525 N.W.2d 745 (Ct. App. 1994).
767.255 Annotation
That individual property was placed in a joint checking account by the owner and used to pay the owner's individual obligations did not render the property subject to division in divorce. Gardner v. Gardner,
190 Wis. 2d 216,
527 N.W.2d 701 (Ct. App. 1994).
767.255 Annotation
The offspring of gifted or inherited animals are not excluded from division by this section. If an asset no longer exists, a court cannot exclude it from the marital estate. Preuss v. Preuss,
195 Wis. 2d 95,
536 N.W.2d 101 (Ct. App. 1995),
94-1148.
767.255 Annotation
Bonuses and fees, like regular income, are not divisible as property but are to be considered in determining a fair division or maintenance. Long v. Long,
196 Wis. 2d 691,
539 N.W.2d 134 (Ct. App. 1995),
94-2533.
767.255 Annotation
The marital estate is usually valued as of the date of divorce, but when conditions over which a party has no control arise, the special circumstances may warrant deviation from the rule. Long v. Long,
196 Wis. 2d 691,
539 N.W.2d 134 (Ct. App. 1995),
94-2533.
767.255 Annotation
For the character of inherited or gifted property to be changed to marital property subject to division, changes to the property as a result of the marital relationship, whether by labor or expenditures, must substantially increase its value. Spindler v. Spindler,
207 Wis. 2d 329,
558 N.W.2d 645 (Ct. App. 1996).
767.255 Annotation
An uneven property division is not the only remedy to deal with squandering of marital assets. Equitable claims against 3rd parties that affect the rights of parties to the divorce, such as a claim against a 3rd-party title holder of property claimed to actually be part of the marital estate, may be appropriate. Zabel v. Zabel,
210 Wis. 2d 337,
565 N.W.2d 240 (Ct. App. 1997).
767.255 Annotation
Income generated by an asset is separate and distinct from the asset itself. Income from the asset is also separate from the appreciation of the asset. As to property division, retained earnings, or the appreciation in value occasioned by the expenditure of the earnings, are a marital asset subject to division. Metz v. Keener,
215 Wis. 2d 620,
573 N.W.2d 865 (Ct. App. 1997).
767.255 Annotation
Appellate review of a trial court's valuation of a closely-held business in a divorce action should proceed on the clearly erroneous standard. When the buyout provisions of a shareholder agreement did not replicate an arm's length transaction it was reasonable for the trial court to find that the buyout figure was not indicative of fair market value. Siker v. Siker,
225 Wis. 2d 522,
593 N.W.2d 830 (Ct. App. 1999).
767.255 Annotation
There are 2 types of postnuptial agreements: 1) family settlement agreements that contemplate the continuation of the marriage, and 2) separation agreements that are made after separation in contemplation of a separation. The former are presumed to be binding on the parties under s. 767.255 (3) (L). The latter are governed by s. 767.10 and constitute a recommendation jointly made by the parties to the court regarding what the judgment should provide. Evenson v. Evenson,
228 Wis. 2d 676,
598 N.W.2d 232 (Ct. App. 1999). See also VanBoxtel v. VanBoxtel, 2001 WI 40,
242 Wis. 2d 474,
625 N.W.2d 284.
767.255 Annotation
An agreement made in contemplation of divorce, entered into after the parties agreed to the divorce, was subject to s. 767.10, not 767.255. When a party withdrew his consent before court approval, the agreement was unenforceable. Ayres v. Ayres,
230 Wis. 2d 431,
602 N.W.2d 132 (Ct. App. 1999).
767.255 Annotation
A spouse's pension, whether or not existing before the marriage, is part of the marital estate subject to division. Award of the premarital portion of a pension to the spouse holding title was improper when there was not sufficient grounds for deviation from an equal property division. Hokin v. Hokin,
231 Wis. 2d 184,
605 N.W.2d 219 (Ct. App. 1999).
767.255 Annotation
The fact that a property interest is contingent and not vested does not mean that it may be ignored in a property division. An insurance company deferred compensation plan for agents, although not a pension plan, was similar enough to a pension to be treated like one when dividing the marital estate. Garceau v. Garceau, 2000 WI App 7,
232 Wis. 2d 1,
606 N.W.2d 268.
767.255 Annotation
If property has no fair market value, the court cannot place an independent value upon it, and it should not be included in the marital estate. A state employee's sick leave account has no fair market value as it has no cash value and is not transferable. Preiss v. Preiss, 2000 WI App 185,
238 Wis. 2d 368,
617 N.W.2d 514.
767.255 Annotation
Section 40.08 (1) does not permit the division of a state employee's deferred compensation account. Preiss v. Preiss, 2000 WI App 185,
238 Wis. 2d 368,
617 N.W.2d 514.
767.255 Annotation
When a farm that a divorcing couple did not own but had lived on for the first 13 years of their marriage was gifted to one spouse and the couple divorced shortly thereafter, the trial court erred when it determined the farm's increase in value after the gift resulted from the efforts of the marital partnership without considering whether the couple's efforts throughout the marriage served as a catalyst for the increase in value. Richmond v. Richmond, 2002 WI App 25,
250 Wis. 2d 647,
640 N.W.2d 220.
767.255 Annotation
In agreeing to accept a percentage share of a variable asset in a property settlement, a party agrees to assume a proportionate share of any subsequent gains or losses until the asset is liquidated. Taylor v. Taylor, 2002 WI App 253,
258 Wis. 2d 290,
653 N.W.2d 524,
02-0118.
767.255 Annotation
An unequal division of an asset based entirely upon an analysis of the parties' respective contributions to the marriage without addressing any of the other statutory factors applied an incorrect standard of law. Sub. (3) requires that any deviation from the presumptive equal property division be upon consideration of all statutory factors. The court may summarily conclude that certain of the factors are irrelevant, and failure to consider all the statutory factors might be harmless, particularly when the overlooked factors are only marginally relevant or not relevant at all. LeMere v. LeMere, 2003 WI 67,
262 Wis. 2d 426,
663 N.W.2d 789,
01-2204.
767.255 Annotation
The circuit court's determination of inequity under sub. (3) (L), as is its property division determination under s. 767.255, is discretionary. The record in this case supported a finding that enforcing the parties' prenuptial agreement was inequitable. Krejci v. Krejci, 2003 WI App 160,
266 Wis. 2d 284,
667 N.W.2d 780,
02-3376.
767.255 Annotation
When there was no dispute that the parties intended to divide the value of pensions equally as of the time of the divorce, but were not able to identify a legal mechanism at the time to do so, the circuit court could impose a constructive trust on the pensions when the titled spouse died and the benefits were payable only to the titled spouse's subsequent spouse. Sulzer v. Diedrich, 2003 WI 90,
263 Wis. 2d 496,
664 N.W.2d 641,
02-0036.
767.255 Annotation
A creditor's right to reach property subject to division in a divorce is not determined by this section but is driven solely by the classification into which the obligation falls under s. 766.55. Sokaogon Gaming Enterprise v. Curda-Derickson, 2003 WI App 167,
266 Wis. 2d 453,
668 N.W.2d 736,
02-0924.
767.255 Annotation
Section 802.12 (3) (c) cannot limit a circuit court's power to consider the equity of agreements. However, circuit courts must give greater deference to an arbiter's award of a property division under s. 802.13 (3) (c) than they would to other types of agreements. Franke v. Franke, 2004 WI 8,
268 Wis. 2d 360,
674 N.W.2d 832,
01-3316.
767.255 Annotation
A stock option contract, like an unvested pension, is not a mere gratuity, but an enforceable contract right. It is an economic resource, comparable to pensions and other employee benefits, and thus a form of property. The trial court did not misuse its discretion by declining to divide vested stocks options that had an exercise price in excess of the current market value of the stock or in valuing the vested portion of stock options at the difference between the market value of the stock and the exercise value. Maritato v. Maritato, 2004 WI App 138, ___ Wis. 2d ___, ___ N.W.2d ___,
03-2074 767.255 Annotation
Federal law precludes a state court from dividing military nondisability retirement pay pursuant to state community property laws. McCarty v. McCarty,
453 U.S. 210 (1981).
767.255 Annotation
An insured's beneficiary designation under servicemen's group life insurance policy prevailed over a constructive trust imposed by a state court. Ridgeway v. Ridgeway,
454 U.S. 46 (1981).
767.255 Annotation
ERISA did not preempt a Wisconsin court order awarding a spouse 1/2 of a beneficiary's interest in a pension. Savings and Profit Sharing Fund of Sears Employees v. Gago,
717 F.2d 1038 (1983).
767.255 Annotation
Dilemma v. Paradox: Valuation of an advanced degree upon dissolution of a marriage. Loeb and McCann, 66 MLR 495 (1983).
767.255 Annotation
The recognition and valuation of professional goodwill in the marital estate. 66 MLR 697 (1983).
767.255 Annotation
Enhanced value of a closely held corporation at the time of divorce: What role will Wisconsin's marital property act play? Podell, 69 MLR 82 (1985).
767.255 Annotation
No-fault divorce: Tax consequences of support, maintenance and property settlement. Case, 1977 WBB 11.
767.255 Annotation
Prenuptial and postnuptial agreements. Loeb, WBB March 1981.
767.255 Annotation
Drafting enforceable marital agreements. Garczynski. WBB Sept. 1986.
767.255 Annotation
The marital property act does not change Wisconsin's divorce law. Weisberger. WBB May 1987.
767.255 Annotation
Transmutation: Finding extra property to divide in divorce. Kessler. Wis. Law. Aug. 1990.
767.255 Annotation
Divorce Provisions in Opt-out Marital Property Agreements. Rasmussen. Wis. Law. April, 1994.
767.255 Annotation
A Decade Post-Button v. Button: Drafting Prenuptial Agreements. Garczynski. Wis. Law. Aug. 1999.
767.255 Annotation
A Primer on Dividing a Military Pension. Halling & Drefahl. Wis. Law. Aug. 1999.
767.26
767.26
Maintenance payments. Upon every judgment of annulment, divorce or legal separation, or in rendering a judgment in an action under
s. 767.02 (1) (g) or
(j), the court may grant an order requiring maintenance payments to either party for a limited or indefinite length of time after considering:
767.26(2)
(2) The age and physical and emotional health of the parties.
767.26(4)
(4) The educational level of each party at the time of marriage and at the time the action is commenced.
767.26(5)
(5) The earning capacity of the party seeking maintenance, 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 find appropriate employment.
767.26(6)
(6) The feasibility that the party seeking maintenance can become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage, and, if so, the length of time necessary to achieve this goal.
767.26(7)
(7) The tax consequences to each party.
767.26(8)
(8) Any mutual agreement made by the parties before or during the marriage, according to the terms of which one party has made financial or service contributions to the other with the expectation of reciprocation or other compensation in the future, where such repayment has not been made, or any mutual agreement made by the parties before or during the marriage concerning any arrangement for the financial support of the parties.
767.26(9)
(9) The contribution by one party to the education, training or increased earning power of the other.
767.26(10)
(10) Such other factors as the court may in each individual case determine to be relevant.
767.26 History
History: 1971 c. 220;
1973 c. 12 s.
37;
1977 c. 105;
1979 c. 32 ss.
50,
92 (4);
1979 c. 196; Stats. 1979 s. 767.26.
767.26 Annotation
While arrearages under a temporary order for alimony and attorney fees and costs that the husband is required to pay do not constitute part of a wife's division of the estate, they are a charge against the entire estate. Tesch v. Tesch,
63 Wis. 2d 320,
217 N.W.2d 647 (1974).
767.26 Annotation
An obligation to support children is a factor in determining the amount of maintenance payments. Besaw v. Besaw,
89 Wis. 2d 509,
279 N.W.2d 192 (1979).
767.26 Annotation
The trial court abused its discretion by denying a mother's choice to remain at home to care for small children. Hartung v. Hartung,
102 Wis. 2d 58,
306 N.W.2d 16 (1981).
767.26 Annotation
The trial court abused its discretion by terminating maintenance without sufficiently addressing the factors under this section. Vander Perren v. Vander Perren,
105 Wis. 2d 219,
313 N.W.2d 813 (1982).
767.26 Annotation
Compensation for a person who supports a spouse while the spouse is in school can be achieved through both property division and maintenance payments. Lundberg v. Lundberg,
107 Wis. 2d 1,
318 N.W.2d 918 (1982).
767.26 Annotation
The trial court may begin its maintenance evaluation with the proposition that the dependent partner may be entitled to 50% of the total earnings of both parties. Bahr v. Bahr,
107 Wis. 2d 72,
318 N.W.2d 391 (1982).
767.26 Annotation
The trial court may not consider marital misconduct as a relevant factor in granting maintenance payments. Dixon v. Dixon,
107 Wis. 2d 492,
319 N.W.2d 846 (1982).
767.26 Annotation
It was improper to discontinue maintenance payments to a former wife solely upon the ground of her cohabitation with another man. Van Gorder v. Van Gorder,
110 Wis. 2d 188,
327 N.W.2d 674 (1983).
767.26 Annotation
Three formulas were approved for calculating maintenance or property division awards in cases in which one spouse has contributed to the other's pursuit of an advanced degree. Haugan v. Haugan,
117 Wis. 2d 200,
343 N.W.2d 796 (1984).
767.26 Annotation
An alcoholic spouse's refusal of treatment is relevant to the trial court's determination regarding a request for permanent maintenance. DeLaMatter v. DeLaMatter,
151 Wis. 2d 576,
445 N.W.2d 676 (Ct. App. 1989).
767.26 Annotation
Military disability payments may be considered in assessing ability to pay maintenance. Weberg v. Weberg,
158 Wis. 2d 540,
463 N.W.2d 382 (Ct. App. 1990).
767.26 Annotation
The trial court's use of a computer program to analyze financial evidence was not error. Bisone v. Bisone,
165 Wis. 2d 114,
477 N.W.2d 59 (Ct. App. 1991).
767.26 Annotation
An award may be based on a percentage of the payer's income in "unusual circumstances." Unpredictable future income warrants a percentage award. Hefty v. Hefty,
172 Wis. 2d 124,
493 N.W.2d 33 (1992).
767.26 Annotation
Maintenance furthers two objectives: 1) to support the recipient spouse in accordance with the needs and earning capacities of the parties; and 2) to ensure a fair and equitable financial agreement between the parties. In the interest of fairness, maintenance may exceed the recipient's budget. Hefty v. Hefty,
172 Wis. 2d 124,
493 N.W.2d 33 (1992).
767.26 Annotation
Maintenance is measured by the parties' lifestyle immediately before the divorce and that they could anticipate enjoying if they were to stay married. The award may take into account income increases the parties could reasonably anticipate. Hefty v. Hefty,
172 Wis. 2d 124,
493 N.W.2d 33 (1992).
767.26 Annotation
A maintenance award must account for the recipient's earning capacity and ability to be self-supporting at a level comparable to that during marriage. It is unfair to require one spouse to continue income production levels to maintain the standard of living of the other who chooses a decrease in production. Forester v. Forester,
174 Wis. 2d 78,
497 N.W.2d 78 (Ct. App. 1993).
767.26 Annotation
Consideration of one spouse's solicitation to have the other murdered in denying maintenance did not violate the statutory scheme and was not an improper consideration of "marital misconduct." Brabec v. Brabec,
181 Wis. 2d 270,
510 N.W.2d 762 (1993).
767.26 Annotation
A maintenance award based on equalization of income is not ``self-evidently fair'' and does not meet the statutory objectives of support and fairness. Olson v. Olson,
186 Wis. 2d 287,
520 N.W.2d 284 (Ct. App. 1994).
767.26 Annotation
An otherwise short-term marriage should not be considered a long-term marriage because there are children. Luciani v. Montemurro-Luciani,
191 Wis. 2d 67,
528 N.W.2d 477 (Ct. App. 1995).
