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).
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).
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).
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 properly 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 form 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 not unreasonable for the trial court to find that the buyout figure was not indicative of the fair market value of the business. 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, which contemplate the continuation of the marriage, and (2) separation agreements, which are made after separation in contemplation of a separation. The former are presumed 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 provide. Evenson v. Evenson,
228 Wis. 2d 676,
598 N.W.2d 232 (Ct. App. 1999).
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, based on a coverture fraction - a fraction the numerator of which is the length of the marriage and the denominator of which is the total years that the spouse was in the plan - 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
A trial court may not consider premarital contributions in its maintenance and property division determinations. A degree is not an asset for purposes of unjust enrichment and premarital contributions toward the degree of one spouse by the other may not be the basis of a claim therefor. Meyer v. Meyer, 2000 WI App 12,
232 Wis. 2d 191, 606 N.W. 184.
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. 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
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, nevertheless, a charge against the entire estate. Tesch v. Tesch,
63 Wis. 2d 320,
217 N.W.2d 647.
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
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
Maintenance payments to a former wife were improperly discontinued solely upon the ground of 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 where 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 (Ct. App. 1993).) (Ct. App. 1994).
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 longer term marriage because there are children. Luciani v. Montemurro-Luciani,
191 Wis. 2d 67,
528 N.W.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 Wis. 2d 67,
528 N.W.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 Wis. 2d 153,
536 N.W.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 Wis. 2d 237,
540 N.W.2d 412 (1995).
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 Wis. 2d 578,
549 N.W.2d 481 (Ct. App. 1996).
767.26 Annotation
When parties have been married to each other more than once, a trial court can look at the total years of marriage when determining maintenance. The trial court is not bound by the terms of maintenance in the first divorce and may look to current conditions in setting maintenance. Wolski v. Wolski,
210 Wis. 2d 184,
565 N.W.2d 196 (Ct. App. 1997).
767.26 Annotation
A stipulation incorporated into a divorce judgment is in the nature of a contract. That a stipulation appears imprudent is not grounds for construction of an unambiguous agreement. Rosplock v. Rosplock,
217 Wis. 2d 22,
577 N.W.2d 32 (Ct. App. 1998).
767.26 Annotation
The purpose of maintenance is, at least in part, to put the recipient in a solid financial position that allows the recipient to become self-supporting by the end of the maintenance period. That the recipient becomes employed and makes productive investments of property division proceeds and maintenance payments is not a substantial change in circumstances, but an expected result of receiving maintenance. Rosplock v. Rosplock,
217 Wis. 2d 22,
577 N.W.2d 32 (Ct. App. 1998).
767.26 Annotation
The trial court's exclusion of pension payments when considering the income available to a maintenance recipient was correct where the pension had been awarded to the recipient as part of the property division and had no value outside of the payments made from it. Seidlitz v. Seidlitz,
217 Wis. 2d 82,
576 N.W.2d 585 (Ct. App. 1998).
767.26 Annotation
The "fairness objective" of equalizing total income does not apply in a postdivorce situation. Modification of maintenance has nothing to do with contributions, economic or noneconomic, made during the marriage. Johnson v. Johnson,
217 Wis. 2d 124,
576 N.W.2d 585 (Ct. App. 1998).
767.26 Annotation
When a reviewing court finds that a trial court erroneously exercised its discretion in awarding maintenance, the case should be remanded for the trial to properly exercise its discretion. It was an abuse of discretion for a trial court to assume that a spouse is legally entitled to maintenance. King v. King,
224 Wis. 2d 235,
590 N.W.2d 480 (1999).
767.26 Annotation
Equal division of income is a reasonable starting point in determining maintenance, but the goal is the standard of living enjoyed during the marriage, not 50% of the total predivorce earnings. Maintenance may surpass 50% of the couple's predivorce income, but the payee is not entitled to live a richer lifestyle than that enjoyed during the marriage. Johnson v. Johnson,
225 Wis. 2d 513,
593 N.W.2d 827 (Ct. App. 1999).
767.26 Annotation
In most cases limited-term maintenance provides the recipient with funds for training intended to enable the recipient to be self-supporting by the end of the maintenance period. Another purpose may be to limit the responsibility of the payor to a certain time and to avoid future litigation and, absent a substantial change of circumstances, the parties may rightfully expect no change. The law of change of circumstances should not require a payor souse to finance unwise financial decisions of the recipient. Maintenance is not intended to provide a permanent annuity. Murray v. Murray,
231 Wis. 2d 71,
604 N.W.2d 912 (Ct. App. 1999).
767.26 Annotation
A trial court may not consider premarital contributions in its maintenance and property division determinations. A degree is not an asset for purposes of unjust enrichment and premarital contributions toward the degree of one spouse by the other may not be the basis of a claim therefor. Meyer v. Meyer, 2000 WI 12,
232 Wis. 2d 191, 606 N.W. 184.
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% per month on any amount in arrears that is equal to or greater than the amount of child support due in one month. If the party no longer has a current obligation to pay child support, interest at the rate of 1% per month shall accrue on the total amount of child support in arrears, if any. 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 department or its designee under
s. 767.29. Except as provided in
s. 767.29 (1m), the department or its 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 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
The offset of excess child support payments against arrears in alimony may be permissible. Anderson v. Anderson,
82 Wis. 2d 115,
261 N.W.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.
