767.61 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.
767.61 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 327,
558 N.W.2d 645 (Ct. App. 1996),
96-0591.
767.61 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 336,
565 N.W.2d 240 (Ct. App. 1997),
96-3092.
767.61 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 626,
573 N.W.2d 865 (Ct. App. 1997),
97-1443.
767.61 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),
98-0553.
767.61 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) [now s. 767.61 (3) (L)]. The latter are governed by s. 767.10 [now s. 767.34] 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),
98-0803. See also VanBoxtel v. VanBoxtel, 2001 WI 40,
242 Wis. 2d 474,
625 N.W.2d 284,
99-0341.
767.61 Annotation
An agreement made in contemplation of divorce, entered into after the parties agreed to the divorce, was subject to s. 767.10 [now s. 767.34], not 767.255 [now s. 767.61]. 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),
98-3450.
767.61 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),
98-3680.
767.61 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,
98-3241.
767.61 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,
99-3261.
767.61 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,
99-3261.
767.61 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,
01-1064.
767.61 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.
767.61 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.
767.61 Annotation
The circuit court's determination of inequity under sub. (3) (L), as is its property division determination under s. 767.255 [now s. 767.61], 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.
767.61 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.
767.61 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.
767.61 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.
767.61 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,
275 Wis. 2d 252,
685 N.W.2d 379,
685 N.W.2d 379,
03-2074 767.61 Annotation
Although under Preiss sick leave accounts are non-divisible property because they cannot be sold or transferred and, therefore, have no fair market value, a sick leave account does have value to the owner and may be a consideration under sub. (3) (j) to justify deviation from an equal property division. Steiner v. Steiner, 2004 WI App 169,
276 Wis. 2d 290,
687 N.W.2d 740,
03-0931.
767.61 Annotation
In the absence of any expert testimony or other evidence to the contrary, the court may rely on its knowledge and experience to engage in reasonable speculation regarding the anticipated tax impact on the present value of retirement assets. Rumpff v. Rumpff, 2004 WI App 197,
276 Wis. 2d 606,
688 N.W.2d 699,
03-2646.
767.61 Annotation
A circuit court's decision on how to divide divisible property is discretionary. The application of sub. (2) (a) to non-divisible property is not discretionary but involves both fact finding and legal questions. The categorization of property as non-divisible under sub. (2) (a) does not necessarily dictate how that property will be treated when the court divides divisible property. Under some circumstances courts may avoid hardship or inequities that might result from according property non-divisible status. Derr v. Derr, 2005 WI App 63,
280 Wis. 2d 681,
696 N.W.2d 170,
03-2181.
767.61 Annotation
When a gifted non-divisible asset was used as collateral for a loan used for the benefit of the marriage, both parties were liable for the debt, and marital funds were used to make payments on the debt, the debt was divisible. Putting property at risk by using it as collateral for a marital loan does not create a presumption that the owning spouse intended to donate part or all of the property to the marriage rendering it divisible. Derr v. Derr, 2005 WI App 63,
280 Wis. 2d 681,
696 N.W.2d 170,
03-2181.
767.61 Annotation
Generally, a final division of property is fixed for all time and is not subject to modification Section 806.07 is applicable to divorce cases, but permits reopening of final judgments only in extraordinary circumstances. Post-divorce employer modification of a pension, years after a divorce, that was thoroughly negotiated and divided at the time of the divorce does not compel reopening the divorce judgment. Winkler v. Winkler, 2005 WI App 100,
282 Wis. 2d 746,
699 N.W.2d 652,
04-1231.
767.61 Annotation
The law does not require a party to a prospective divorce to take advantage of an opportunity to acquire property that would increase the value of the marital estate. Noble v. Noble, 2005 WI App 227,
287 Wis. 2d 699,
706 N.W.2d 166,
04-2933.
767.61 Annotation
Since it was anticipated, based on testimony, that the payor spouse would sell or refinance real estate to make an equalization payment in the property division, there was no reason for the court to have considered the tax consequences of the payor's withdrawing the money from his IRA to make the payment. That the payor ultimately chose to raise funds through a method that resulted in significant penalties to himself was his erroneous exercise of discretion, not the trial court's. Scheuer v. Scheuer, 2006 WI App 38,
290 Wis. 2d 250,
711 N.W.2d 698,
04-3162.
767.61 Annotation
To require a party to share in the debts created by a spouse's unjustified depletion of marital assets would constitute a failure to consider the total contribution of each of the parties to the marital estate. Chapter 767 makes recompense available when one spouse has mismanaged or dissipated assets. Depending on the circumstances of the case, one spouse's failure to pay tax debts can be considered the mismanagement or dissipation of assets and therefore marital waste. Covelli v. Covelli, 2006 WI App 121, ___ Wis. 2d ___,
718 N.W.2d 260,
05-1960.
767.61 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).
767.61 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).
767.61 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).
767.61 Annotation
Dilemma v. Paradox: Valuation of an advanced degree upon dissolution of a marriage. Loeb and McCann, 66 MLR 495 (1983).
767.61 Annotation
The recognition and valuation of professional goodwill in the marital estate. 66 MLR 697 (1983).
767.61 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).
767.61 Annotation
No-fault divorce: Tax consequences of support, maintenance and property settlement. Case, 1977 WBB 11.
767.61 Annotation
Prenuptial and postnuptial agreements. Loeb, WBB March 1981.
767.61 Annotation
Drafting enforceable marital agreements. Garczynski. WBB Sept. 1986.
767.61 Annotation
The marital property act does not change Wisconsin's divorce law. Weisberger. WBB May 1987.
767.61 Annotation
Transmutation: Finding extra property to divide in divorce. Kessler. Wis. Law. Aug. 1990.
767.61 Annotation
Divorce Provisions in Opt-out Marital Property Agreements. Rasmussen. Wis. Law. April, 1994.
767.61 Annotation
A Decade Post-Button v. Button: Drafting Prenuptial Agreements. Garczynski. Wis. Law. Aug. 1999.
767.61 Annotation
A Primer on Dividing a Military Pension. Halling & Drefahl. Wis. Law. Aug. 1999.
767.63
767.63
Disposed assets may be subject to division. In an action affecting the family, except an action to affirm marriage under
s. 767.001 (1) (a), any asset with a fair market value of $500 or more that would be considered part of the estate of either or both of the parties if owned by either or both of them at the time of the action and that was transferred for inadequate consideration, wasted, given away, or otherwise unaccounted for by one of the parties within one year prior to the filing of the petition or the length of the marriage, whichever is shorter, is rebuttably presumed to be property subject to division under
s. 767.61 and is subject to the disclosure requirement of
s. 767.127. Transfers that resulted in an exchange of assets of substantially equivalent value need not be specifically disclosed if those assets are otherwise identified in the statement of net worth.
767.63 History
History: 1977 c. 105;
1979 c. 32 ss.
50,
92 (4);
1979 c. 352 s.
39; Stats. 1979 s. 767.275;
2005 a. 443 s.
124; Stats. 2005 s. 767.63.
ENFORCEMENT
767.70
767.70
Child support enforcement: notice and service of process. 767.70(1)(1)
When satisfied. In an action under
s. 767.001 (1) (i) to enforce or modify a judgment or order with respect to child support, due process requirements related to notice and service of process are satisfied if the court finds all of the following:
767.70(1)(a)
(a) That a diligent effort was made to ascertain the location of the respondent.
767.70(1)(b)
(b) That written notice of the action to the respondent has been delivered to the most recent residential address or employer address provided by the respondent under
s. 767.58 (2) to the county child support agency under
s. 59.53 (5).
767.70(2)
(2) Rules on locating respondent. The department shall promulgate rules specifying the process that the department will use under
sub. (1) (a) to ascertain the location of the respondent. Notwithstanding
sub. (1) (b), the process specified in the rules shall utilize all reasonable means to which the department has access, including electronic means, interfaces with other programs, and information provided by the postmaster, for determining the current address of the respondent.
767.70 History
History: 1997 a. 191;
2005 a. 443 s.
21; Stats. 2005 s. 767.70.
767.70 Note
NOTE: 2005 Wis. Act 443, which affected this section, contains explanatory notes.
767.70 Cross-reference
Cross Reference: See also ch.
DWD 42, Wis. adm. code.
767.71
767.71
Reconciling percentage-expressed support orders. 767.71(1)(a)(a) In this section, "support order" means an order for child support under this chapter or
s. 948.22 (7), an order for family support under this chapter, or a stipulation approved by the court for child support under this chapter.
767.71(1)(b)
(b) If a support order is or has been expressed as a percentage of parental income, a party, including the state or a county child support agency under
s. 59.53 (5) if the state is a real party in interest under
s. 767.205 (2) (a), may request a determination under this section of the amount due under the order. The court may determine the amount due and, if ordered by the court, the county child support agency shall reconcile the amount due with payments actually made to determine if an arrearage exists.
767.71(2)(a)(a) The party seeking the determination under this section shall file with the court a notice of reconciliation of account and a supporting affidavit. No later than 3 business days after filing, the party seeking the determination shall serve the notice and affidavit on all other parties, including the child support agency if the state is a real party in interest, by sending the notice and affidavit by regular mail to the last-known address provided under
s. 767.58 (2), pursuant to
s. 767.70.
767.71(2)(b)
(b) The notice of reconciliation of account shall include all of the following:
767.71(2)(b)1.
1. The period of time for which the reconciliation is sought.
767.71(2)(b)2.
2. A statement that, unless a party requests a hearing no later than 20 business days after the date of the notice, the court may enter an order determining the amount due under the percentage-expressed order and may enter a repayment order that applies if the reconciliation of the amount due with payments made results in an arrearage.
767.71(2)(b)3.
3. The mailing address to which the request for a hearing must be delivered or mailed to schedule a hearing under
sub. (3).
767.71(2)(c)
(c) The supporting affidavit shall state the facts supporting a reasonable basis for determining the payer's income during the period of time for which the reconciliation is sought.
767.71(3)(a)(a) Within 10 business days after receiving a timely request for a hearing, the court shall set the matter for hearing. The court shall send notice of the date, time, and location of the hearing to the parties by regular mail at their last-known addresses.
767.71(3)(b)
(b) At the hearing, the court may establish the appropriate charge under the percentage order by determining the amount of the payer's income that is subject to the percentage-expressed order during the period for which reconciliation is sought and applying the ordered percentage to that amount. The court may enter a repayment order that becomes effective if the reconciliation of the amount due with payments made results in an arrearage.
767.71(4)
(4) If no hearing. If no party requests a hearing, the court shall review the supporting affidavit within 60 days of filing. If the court finds that the affidavit contains a reasonable basis for determining the payer's income during the period for which reconciliation is sought, the court may enter an order determining the amount due under the percentage-expressed order and may enter a repayment order that becomes effective if the reconciliation of the amount due with payments made results in an arrearage. The court shall send the order to the parties by regular mail to their last-known addresses.
767.71(5)
(5) Enforcement. Any arrearage that exists as a result of the reconciliation of the amount due with payments made may be enforced under
ch. 49 or this chapter.
767.71 History
History: 2005 a. 443.
767.73
767.73
Delinquent child or family support; suspension of operating privilege. 767.73(1)(a)(a) In this subsection, "support payment" means a payment ordered for support under
s. 767.521, support under
s. 767.501, child support or family support under
s. 767.225, child support under
s. 767.511, family support under
s. 767.531, revised child or family support under
s. 767.59, child support under
s. 767.863 (3), child support under
s. 767.85, child support under
s. 767.89, child support under
s. 767.805 (4), child support under
ch. 769, or child support under
s. 948.22 (7).
767.73(1)(b)
(b) If a person fails to pay a support payment that is 90 or more days past due and the court finds that the person has the ability to pay the amount ordered, the court may suspend the person's operating privilege, as defined in
s. 340.01 (40), until the person pays all arrearages in full or makes payment arrangements that are satisfactory to the court, except that the suspension period may not exceed 2 years. If otherwise eligible, the person is eligible for an occupational license under
s. 343.10 at any time.
767.73(2)
(2) Notice of suspension to department of transportation. If a court orders suspension of a person's operating privilege under
sub. (1) (b), the court shall notify the department of transportation, in the form and manner prescribed by the department. The notice to the department shall include the name and last-known address of the person against whom the support order was entered, certification by the court that the person has been notified of the entry of the support order and that there are arrearages in support payments that are 90 or more days past due, and the place where the arrearages may be paid. The notice shall also state that the person's operating privilege remains suspended until the person pays all arrearages in full or makes payment arrangements that are satisfactory to the court, except that the suspension period may not exceed 2 years.
767.73(3)
(3) Notice of payment to department. If the person subsequently pays the full amount of the arrearages or makes payment arrangements that are satisfactory to the court, the court shall immediately notify the department of transportation of the payment in the form and manner prescribed by the department.
767.73(4)
(4) Application to past arrearages. This section applies to support arrearages existing on or after October 1, 1996, regardless of when the arrearages accrued or when the order or judgment requiring the payment of support was entered.
767.73(5)
(5) Relationship to other remedies. The remedy permitted under this section is in addition to any other remedies authorized by law.
767.73 History
History: 1995 a. 401;
1997 a. 84,
191;
1999 a. 9,
32;
2005 a. 443 ss.
139,
140,
141,
236; Stats. 2005 s. 767.73.
767.75
767.75
Assignment of income for payment obligations. 767.75(1)(a)
(a) "Employer" includes the state and its political subdivisions.
767.75(1)(b)
(b) "Payment order" means an order for child support under this chapter, for maintenance payments under
s. 767.225 or
767.56, for family support under this chapter, for costs ordered under
s. 767.805 (4) or
767.89 (3), for support by a spouse under
s. 767.001 (1) (f), or for maintenance payments under
s. 767.001 (1) (g); an order for or obligation to pay the annual receiving and disbursing fee under
s. 767.57 (1e) (a); an order for a revision in a judgment or order with respect to child support, maintenance, or family support payments under
s. 767.59; a stipulation approved by the court for child support under this chapter; and an order for child or spousal support entered under
s. 948.22 (7).
767.75(1f)
(1f) Payment order as assignment of income. A payment order constitutes an assignment of all commissions, earnings, salaries, wages, pension benefits, benefits under
ch. 102 or
108, lottery prizes that are payable in installments, and other money due or to be due in the future to the department or its designee. The assignment shall be for an amount sufficient to ensure payment under the order, obligation, or stipulation and to pay any arrearages due at a periodic rate not to exceed 50% of the amount of support due under the order, obligation, or stipulation so long as the addition of the amount toward arrearages does not leave the party at an income below the poverty line established under
42 USC 9902 (2).
767.75(1m)
(1m) Obligation continuing. If a party's current obligation to pay maintenance, child support, spousal support, or family support terminates but the party has an arrearage in the payment of one or more of those payments or in the payment of the annual receiving and disbursing fee, any assignment under
sub. (1f) continues in effect, in an amount up to the amount of the assignment before the party's current obligation terminated, until the arrearage is paid in full.
767.75(2h)
(2h) Delayed withholding; failure to pay. If a court-ordered assignment, including the assignment specified under
sub. (1f) for the payment of any arrearages due, does not require immediately effective withholding and a payer fails to make a required maintenance, child support, spousal support, family support, or annual receiving and disbursing fee payment within 10 days after its due date, within 20 days after the payment's due date the court or county child support agency under
s. 59.53 (5) shall cause the assignment to go into effect by providing notice of the assignment in the manner provided under
sub. (2r) and shall send a notice by regular mail to the last-known address of the payer. The notice sent to the payer shall inform the payer that an assignment is in effect and that the payer may, within a 10-day period after the notice is mailed, by motion request a hearing on the issue of whether the assignment should remain in effect. The court shall hold a hearing requested under this subsection within 10 working days after the date of receipt of the request. If at the hearing the payer establishes that the assignment is not proper because of a mistake of fact, the court may direct that the assignment be withdrawn. Either party may, within 15 working days after the date of a decision by a circuit court commissioner under this subsection, seek review of the decision by the court with jurisdiction over the action.
767.75(2m)
(2m) Unpaid receiving and disbursing fees; assignment. 767.75(2m)(a)1.1. An obligation to pay unpaid fees under
s. 767.57 (1e) (b) 1m. constitutes an assignment of all commissions, earnings, salaries, wages, pension benefits, benefits under
ch. 102 or
108, lottery prizes that are payable in installments, and other money due or to be due in the future to the department or its designee.
