767.255 Annotation
Presumption exists that injured party is entitled to all future payments under structured settlement, but they are subject to 767.255 factors. In re Marriage of Krebs v. Krebs, 148 W (2d) 51, 435 NW (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 W (2d) 285, 493 NW (2d) 737 (Ct. App. 1992).
767.255 Annotation
Where gifted or inherited property has appreciated in value during the marriage due to the efforts of the spouses, the appreciation is a part of the marital estate. Schorer v. Schorer, 177 W (2d) 387, 501 NW (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 W (2d) 387, 501 NW (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 W (2d) 481, 504 NW (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 W (2d) 481, 504 NW (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 W (2d) 285, 510 NW (2d) 767 (Ct. App. 1993).
767.255 Annotation
A divorce decree which awarded one-half of the husband's pension to the wife divested the husband of that one-half interest. Although the husband had failed to effectuate the transfer as required by the divorce decree, the wife's one-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 W (2d) 271, 525 NW (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 W (2d) 112, 525 NW (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 W (2d) 216, 527 NW (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 W (2d) 95, 536 NW (2d) 101 (Ct. App. 1995).
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 W (2d) 691, 539 NW (2d) 134 (Ct. App. 1995).
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 W (2d) 691, 539 NW (2d) 134 (Ct. App. 1995).
767.255 Annotation
Federal law precludes state court from dividing military nondisability retired pay pursuant to state community property laws. McCarty v. McCarty, 453 US 210 (1981).
767.255 Annotation
Insured's beneficiary designation under servicemen's group life insurance policy prevailed over constructive trust imposed by state court. Ridgeway v. Ridgeway, 454 US 46 (1981).
767.255 Annotation
ERISA did not preempt Wisconsin court order awarding spouse 1/2 of beneficiary's interest in pension. Sav. & Profit Sharing Fund of Sears Emp. 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
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.
767.26
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 which the husband is required to pay do not constitute part of a wife's division of the estate, they are, nevertheless, a charge against the entire estate. Tesch v. Tesch, 63 W (2d) 320, 217 NW (2d) 647.
767.26 Annotation
Obligation to support children is factor in determining amount of maintenance payments. Besaw v. Besaw, 89 W (2d) 509, 279 NW (2d) 192 (1979).
767.26 Annotation
Trial court abused discretion by denying mother's choice to remain at home to care for small children. Hartung v. Hartung, 102 W (2d) 58, 306 NW (2d) 16 (1981).
767.26 Annotation
Trial court abused discretion by terminating maintenance without sufficiently addressing factors under this section. Vander Perren v. Vander Perren, 105 W (2d) 219, 313 NW (2d) 813 (1982).
767.26 Annotation
Compensation for person who supports spouse while spouse is in school can be achieved through both property division and maintenance payments. In re Marriage of Lundberg, 107 W (2d) 1, 318 NW (2d) 918 (1982).
767.26 Annotation
Support award was inadequate and, consequently, an abuse of discretion. In Matter of Marriage of Jasper v. Jasper, 107 W (2d) 59, 318 NW (2d) 792 (1982).
767.26 Annotation
Trial court may begin maintenance evaluation with proposition that dependent partner may be entitled to 50% of total earnings of both parties. Bahr v. Bahr, 107 W (2d) 72, 318 NW (2d) 391 (1982).
767.26 Annotation
Trial court may not consider marital misconduct as relevant factor in granting maintenance payments. Dixon v. Dixon, 107 W (2d) 492, 319 NW (2d) 846 (1982).
767.26 Annotation
Maintenance payments to former wife were improperly discontinued solely upon ground of cohabitation with another man. Van Gorder v. Van Gorder, 110 W (2d) 188, 327 NW (2d) 674 (1983).
767.26 Annotation
Three formulas approved for calculating maintenance or property division award in cases where one spouse has contributed to other spouse's pursuit of advanced educational degree. Marriage of Haugan v. Haugan, 117 W (2d) 200, 343 NW (2d) 796 (1984).
767.26 Annotation
Alcoholic spouse's refusal of treatment is relevant to trial court's determination regarding request for permanent maintenance. Marriage of DeLaMatter v. DeLaMatter, 151 W (2d) 576, 445 NW (2d) 676 (Ct. App. 1989).
767.26 Annotation
Military disability payments may be considered in assessing spouse's ability to pay maintenance. In re Marriage of Weberg v. Weberg, 158 W (2d) 540, 463 NW (2d) 382 (Ct. App. 1990).
767.26 Annotation
Trial court's use of computer program to analyze financial evidence approved. In re Marriage of Bisone, 165 W (2d) 114, 477 NW (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. In re Marriage of Hefty v. Hefty, 172 W (2d) 124, 493 NW (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. In re Marriage of Hefty v. Hefty, 172 W (2d) 124, 493 NW (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. In re Marriage of Hefty v. Hefty, 172 W (2d) 124, 493 NW (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. Marriage of Forester v. Forester, 174 W (2d) 78, 497 NW (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 W (2d) 270, 510 NW (2d) 762 (Ct. App. 1993).) (Ct. App. 1994).
767.26 Annotation
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 W (2d) 287, 520 NW (2d) 284 (Ct. App. 1994).
767.26 Annotation
An otherwise short term marriage should not be considered a longer term marriage because there are children. Luciani v. Montemurro-Luciani, 191 W (2d) 67, 528 NW (2d) 477 (Ct. App. 1995).
767.26 Annotation
One spouse's contribution of child-rearing services and family support while the other spouse completed an education program was not sufficient grounds for awarding compensatory maintenance. Luciani v. Montemurro-Luciani, 191 W (2d) 67, 528 NW (2d) 477 (Ct. App. 1995).
767.26 Annotation
Leaving maintenance open due to potential future health problems of one spouse without expert testimony was proper, but failure to limit the order accordingly was improper. Grace v. Grace, 195 W (2d) 153, 536 NW (2d) 109 (Ct. App. 1995).
767.26 Annotation
Post-divorce increases in a pension fund valued in a divorce should be treated as an income stream available for maintenance. Olski v. Olski, 197 W (2d) 237, 540 NW (2d) 412 (1995).
767.26 Annotation
Sub. (6) makes interest on child support arrearages mandatory. A trial court has no discretion in awarding interest, even if it determines that to do so would be inequitable. Douglas County Child Support v. Fisher, 200 W (2d) 807, 547 NW (2d) 801 (Ct. App. 1996).
767.26 Annotation
A court may consider earning capacity rather than actual earnings in determining child support and maintenance if it find's a spouse's job choice voluntary and unreasonable. Sellers v. Sellers, 201 W (2d) 578, 549 NW (2d) 481 (Ct. App. 1996).
767.26 Annotation
The federal tax consequences of divorce. Meldman, Ryan, 57 MLR 229.
767.26 Annotation
No-fault divorce: Tax consequences of support, maintenance and property settlement. Case, 1977 WBB 11.
767.26 Annotation
See also notes to s. 767.32 for decisions regarding postjudgment modifications.
767.261
767.261
Family support. The court may make a financial order designated "family support" as a substitute for child support orders under
s. 767.25 and maintenance payment orders under
s. 767.26. A party ordered to pay family support under this section shall pay simple interest at the rate of 1.5% per month on any amount unpaid, commencing the first day of the 2nd month after the month in which the amount was due. Interest under this section is in lieu of interest computed under
s. 807.01 (4),
814.04 (4) or
815.05 (8) and is paid to the clerk of court or support collection designee under
s. 767.29. Except as provided in
s. 767.29 (1m), the clerk of court or support collection designee, whichever is appropriate, shall apply all payments received for family support as follows:
767.261(1)
(1) First, to payment of family support due within the calendar month during which the payment is withheld from income under
s. 767.265 or under similar laws of another state. If payment is not made through income withholding, the clerk or support collection designee, whichever is appropriate, shall first apply family support payments received to payment of family support due within the calendar month during which the payment is received.
767.261(2)
(2) Second, to payment of unpaid family support due before the payment is received.
767.261(3)
(3) Third, to payment of interest accruing on unpaid family support.
767.261 Annotation
Offset of excess child support payments against arrears in alimony may be permissible. Anderson v. Anderson, 82 W (2d) 115, 261 NW (2d) 817.
767.262
767.262
Award of attorney fees. 767.262(1)
(1) The court, after considering the financial resources of both parties, may do the following:
767.262(1)(a)
(a) Order either party to pay a reasonable amount for the cost to the other party of maintaining or responding to an action affecting the family and for attorney fees to either party.
767.262(1)(b)
(b) If one party receives services under
s. 49.22 or services provided by the state or county as a result of an assignment of income under
s. 49.19, order the other party to pay any fee chargeable under
s. 49.22 (6) or the cost of services rendered by the state or county under
s. 49.19.
767.262(2)
(2) Any amount ordered under
sub. (1) may include sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment.
767.262(3)
(3) The court may order that the amount be paid directly to the attorney or to the state or the county providing services under
s. 49.22 or
49.19, who may enforce the order in its name.
767.262(4)(a)(a) Except as provided in
par. (b), no court may order payment of costs under this section by the state or any county which may be a party to the action.
767.262(4)(b)
(b) The court may order payment of costs under this section by a county in an action in which the court finds that the record of payments and arrearages kept by the clerk of court under
s. 59.40 (2) (h) or the support collection designee under
s. 59.07 (97m) (b) 1. [59.53 (5m) (b) 1.] is substantially incorrect and that the clerk of court or support collection designee has failed to correct the record within 30 days after having received information that the court determines is sufficient for making the correction.
767.262 Note
NOTE: Par. (b) is shown as affected by two acts of the 1995 legislature and as merged by the revisor under s. 13.93 (2) (c). The bracketed language indicates the correct cross-reference. Corrective legislation is pending.
767.262 History
History: 1977 c. 105;
1979 c. 32 s.
50;
1979 c. 352 s.
39; Stats. 1979 s. 767.262;
1983 a. 27;
1993 a. 481,
490;
1995 a. 201,
279,
404; s. 13.93 (2) (c).
767.262 Annotation
Allowance of $2,300 as a contribution to the wife's attorney's fees incurred in the litigation is not deemed excessive where it was obvious that the trial court reasonably believed that a considerable portion of the attorney-fee liability was attributable to the husband who, represented by 4 successive attorneys or firms, caused a needlessly protracted trial, made numerous defense motions, and prosecuted a meritless appeal—an element which, together with others, constituted a firm basis for fixing such contribution. Martin v. Martin, 46 W (2d) 218, 174 NW (2d) 468.
767.262 Annotation
An allowance of $1,000 attorneys fees on appeal, after the award of a generous property settlement, constitutes a penalty for appealing. Molloy v. Molloy, 46 W (2d) 682, 176 NW (2d) 292.
767.262 Annotation
Attorney fees on appeal depend on the wife's need, the husband's ability to pay and whether there is reasonable ground for the appeal. Klipstein v. Klipstein, 47 W (2d) 314, 177 NW (2d) 57.
767.262 Annotation
A circuit court does not have subject matter jurisdiction in a divorce action to determine attorney's fees between an attorney and client whom the attorney continues to represent in the divorce action. In re Marriage of Stasey v. Stasey, 168 W (2d) 37, 483 NW (2d) 221 (1992).
767.262 Annotation
Nonmarital assets may be considered in determining whether to order one party to contribute to the other's fees. Doerr v. Doerr, 189 W (2d) 112, 525 NW (2d) 745 (Ct. App. 1994).
767.263
767.263
Notice of change of employer; change of address; change in ability to pay. Each order for child support, family support or maintenance payments shall include an order that the payer and payee notify the clerk of court or support collection designee, whichever is appropriate, of any change of address within 10 days of such change. Each order for child support, family support or maintenance payments shall also include an order that the payer notify the clerk of court or support collection designee, within 10 days, of any change of employer and of any substantial change in the amount of his or her income such that his or her ability to pay child support, family support or maintenance is affected. The order shall also include a statement that clarifies that notification of any substantial change in the amount of the payer's income will not result in a change of the order unless a revision of the order is sought.
767.263 History
History: 1977 c. 105;
1979 c. 32 s.
50; Stats. 1979 s. 767.263;
1989 a. 212;
1995 a. 279.
767.265
767.265
Income withholding.
