2005 Chapter 767

767.59 Annotation If a motion seeks to clarify a court's ambiguous property division rather than revise or modify it, it is not barred by sub. (1) (a). Section 767.01 (1) [now s. 767.201] grants the power to effectuate a divorce judgment by construing an ambiguous provision of a final division of property. Washington v. Washington, 2000 WI 47, 234 Wis. 2d 689, 611 N.W.2d 261, 98-1234.

767.59 Annotation Equitable estoppel does not apply to prevent modification of a stipulation for nonmodifiable maintenance if at the time that the stipulation was entered into it violated public policy because it indefinitely burdened only one party with the entire risk of financial hardship. Patrickus v. Patrickus, 2000 WI App 255, 239 Wis. 2d 340, 620 N.W.2d 205, 99-3315.

767.59 Annotation Mere silence regarding whether interest was owed on a specified sum to be paid over time did not render a judgment ambiguous. Hutjens v. Hutjens, 2002 WI App 162, 256 Wis. 2d 255, 647 N.W.2d 448, 01-3061.

767.59 Annotation Incarceration is a change in circumstance sufficient to give a court competence to review a child support order, but should not be the sole determinative factor. Consideration of the nature of the criminal conduct is appropriate for an overall evaluation of the parent's behavior as it relates to ability and attitude toward paying child support. Rottscheit v. Dumler, 2003 WI 62, 262 Wis. 2d 292, 664 N.W.2d 525, 01-2213.

767.59 Annotation The test for a substantial change in circumstances is the same whether the issue of maintenance was originally stipulated to or contested. The correct test regarding modification considers fairness to both parties under all circumstances, not whether it is unjust or inequitable to alter the original award. A judge who reviews a request to modify a maintenance award should adhere to the findings of fact made by the circuit court. Education expenses for an adult child do not have to be considered by the modifying court when examining a party's budget, but can be. Rohde-Giovanni v. Baumgart, 2004 WI 27, 269 Wis. 2d 598, 676 N.W.2d 452, 01-3014.

767.59 Annotation A trial court's decision to deny an extension of maintenance, including deciding whether there is a substantial change in circumstances, is a discretionary decision. The trial court's decision on a substantial change in circumstances is upheld if there is a reasonable basis in the record for the trial court's decision. Cashin v. Cashin, 2004 WI App 92, 273 Wis. 2d 754, 681 N.W.2d 255, 03-1010.

767.59 Annotation During a maintenance modification proceeding, the appropriate comparison for any change in the parties' financial circumstances is to the facts that existed at the time of the most recent maintenance order, whether in the original divorce judgment or a subsequent modification. Neither issue or claims preclusion applies to a maintenance modification proceeding after a court has found the parties' financial circumstances to be substantially changed. Once a party has demonstrated a substantial change since the time of the operative maintenance award, a maintenance modification proceeding does not present the same issues or claims that were originally litigated. Kenyon v. Kenyon, 2004 WI 147, 277 Wis. 2d 47, 690 N.W.2d 251, 02-3041.

767.59 Annotation Retroactive applications of subs. (1m) and (1r) do not violate due process. Retroactive applications serve significant public purposes, while remedying general social and economic issues. Barbara B. v. Dorian H. 2005 WI 6, 277 Wis. 2d 378, 690 N.W.2d 849, 03-1877.

767.59 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.

767.59 Annotation In shirking cases, when considering a spouse's conduct in voluntarily reducing his or her income, a court applies a test of reasonableness under the circumstances, balancing the needs of the parents and the needs of the child, both financial and otherwise, like child care and the ability of both parents to pay child support. Furthermore, under s. 767.25 (1m) (d) and (e) [now s. 767.511 (1m) (d) and (e)] after considering the listed economic factors, the desirability that the custodian remain in the home as a full-time parent, and the value of custodial services performed by the custodian if the custodian remains at home, the court may conclude that the percentage standard is unfair to the child or to any of the parties. Chen v. Warner, 2005 WI 55, 280 Wis. 2d 344, 695 N.W.2d 758, 03-0288.

767.59 Annotation Sub. (1r) (d) should not be construed to bar credit in a situation where a child support payor has made all requisite support payments. Paulhe v. Riley, 2006 WI App 171, ___ Wis. 2d ___, ___ N.W.2d ___, 05-2487.

subch. VII of ch. 767 SUBCHAPTER VII

PROPERTY DIVISION

767.61 767.61  Property division.

767.61(1) (1)  Division required. Upon every judgment of annulment, divorce, or legal separation, or in rendering a judgment in an action under s. 767.001 (1) (h), the court shall divide the property of the parties.

767.61(2) (2) Property subject to division.

767.61(2)(a) (a) Except as provided in par. (b), any property shown to have been acquired by either party prior to or during the course of the marriage in any of the following ways shall remain the property of that party and is not subject to a property division under this section:

767.61(2)(a)1. 1. As a gift from a person other than the other party.

767.61(2)(a)2. 2. By reason of the death of another, including, but not limited to, life insurance proceeds; payments made under a deferred employment benefit plan, as defined in s. 766.01 (4) (a), or an individual retirement account; and property acquired by right of survivorship, by a trust distribution, by bequest or inheritance or by a payable on death or a transfer on death arrangement under ch. 705.

767.61(2)(a)3. 3. With funds acquired in a manner provided in subd. 1. or 2.

767.61(2)(b) (b) Paragraph (a) does not apply if the court finds that refusal to divide the property will create a hardship on the other party or on the children of the marriage. If the court makes such a finding, the court may divest the party of the property in a fair and equitable manner.

767.61(3) (3) Presumption of equal division. The court shall presume that all property not described in sub. (2) (a) is to be divided equally between the parties, but may alter this distribution without regard to marital misconduct after considering all of the following:

767.61(3)(a) (a) The length of the marriage.

767.61(3)(b) (b) The property brought to the marriage by each party.

767.61(3)(c) (c) Whether one of the parties has substantial assets not subject to division by the court.

767.61(3)(d) (d) The contribution of each party to the marriage, giving appropriate economic value to each party's contribution in homemaking and child care services.

767.61(3)(e) (e) The age and physical and emotional health of the parties.

767.61(3)(f) (f) The contribution by one party to the education, training or increased earning power of the other.

767.61(3)(g) (g) The earning capacity of each party, 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 become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage.

767.61(3)(h) (h) The desirability of awarding the family home or the right to live therein for a reasonable period to the party having physical placement for the greater period of time.

767.61(3)(i) (i) The amount and duration of an order under s. 767.56 granting maintenance payments to either party, any order for periodic family support payments under s. 767.531 and whether the property division is in lieu of such payments.

767.61(3)(j) (j) Other economic circumstances of each party, including pension benefits, vested or unvested, and future interests.

767.61(3)(k) (k) The tax consequences to each party.

767.61(3)(L) (L) Any written agreement made by the parties before or during the marriage concerning any arrangement for property distribution; such agreements shall be binding upon the court except that no such agreement shall be binding where the terms of the agreement are inequitable as to either party. The court shall presume any such agreement to be equitable as to both parties.

767.61(3)(m) (m) Such other factors as the court may in each individual case determine to be relevant.

767.61(4) (4) Separate fund or trust option. In dividing the property of the parties under this section, the court may protect and promote the best interests of a child of the parties described under s. 767.511 (4) by setting aside a portion of the property in a separate fund or trust for the support, maintenance, education, and general welfare of the child.

767.61(5) (5) Related provisions of judgment. In a judgment described under sub. (1), the court shall do all of the following:

767.61(5)(a) (a) Direct that title to the property of the parties be transferred as necessary, in accordance with the division of property set forth in the judgment.

767.61(5)(b) (b) Include all of the following in the judgment:

767.61(5)(b)1. 1. Notification that it may be necessary for the parties to take additional actions in order to transfer interests in their property in accordance with the division of property set forth in the judgment, including such interests as interests in real property, interests in retirement benefits, and contractual interests.

767.61(5)(b)2. 2. Notification that the judgment does not necessarily affect the ability of a creditor to proceed against a party or against that party's property even though the party is not responsible for the debt under the terms of the judgment.

767.61(5)(b)3. 3. Notification that an instrument executed by a party before the judgment naming the other party as a beneficiary is not necessarily affected by the judgment and it may be necessary to revise the instrument if a change in beneficiary is desired.

767.61(6) (6) Recording judgment affecting real property sufficient. A certified copy of the portion of the judgment affecting title to real property, or a deed consistent with the judgment, shall be recorded in the office of the register of deeds of the county in which the real property is located.

767.61 History History: 1977 c. 105; 1979 c. 32 ss. 50, 92 (4); 1979 c. 196; Stats. 1979 s. 767.255; 1983 a. 186; 1985 a. 37; 1987 a. 355; 1993 a. 422; 2005 a. 443 ss. 109, 231, 232; Stats. 2005 s. 767.61.

767.61 Note NOTE: See notes in 1985 Wis. Act 37, marital property trailer bill.

767.61 Note NOTE: 2005 Wis. Act 443, which affected this section, contains explanatory notes.

767.61 Annotation Accounts receivable of a medical clinic in which the husband was a partner were properly viewed by the trial court as salary. Johnson v. Johnson, 78 Wis. 2d 137, 254 N.W.2d 198 (1977).

767.61 Annotation A veteran disability pension is to be considered as earned income and not as an asset to be divided between the parties. Leighton v. Leighton, 81 Wis. 2d 620, 261 N.W.2d 457 (1978).

767.61 Annotation There are at least 3 methods for valuing pension rights. Whether the use of any method is appropriate depends upon the status of the parties and whether the result is a reasonable valuation of the marital asset. Bloomer v. Bloomer, 84 Wis. 2d 124, 267 N.W.2d 235 (1978).

767.61 Annotation Support of stepchildren is a relevant factor in dividing marital property. Fuerst v. Fuerst, 93 Wis. 2d 121, 286 N.W.2d 861 (Ct. App. 1979).

767.61 Annotation Compensation for a person who supported a spouse while the spouse was 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).

767.61 Annotation A federal pension in lieu of social security must be included in a marital property division. Mack v. Mack, 108 Wis. 2d 604, 323 N.W.2d 153 (Ct. App. 1982).

767.61 Annotation Unless a divorce decree specifically terminates a spouse as the beneficiary of a life insurance policy and the insurance company is notified, the spouse's beneficiary status is not affected by the divorce decree. Bersch v. VanKleeck, 112 Wis. 2d 594, 334 N.W.2d 114 (1983).

767.61 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).

767.61 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).

767.61 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).

767.61 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).

767.61 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).

767.61 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).

767.61 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).

767.61 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).

767.61 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).

767.61 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).

767.61 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).

767.61 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).

767.61 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).

767.61 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 [now s. 767.61] factors. Krebs v. Krebs, 148 Wis. 2d 51, 435 N.W.2d 240 (1989).

767.61 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).

767.61 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).

767.61 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).

767.61 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).

767.61 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).

767.61 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).

767.61 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).

767.61 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).

767.61 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).

767.61 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.

767.61 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.

767.61 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.