2003 Chapter 767

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(1) (1) The length of the marriage.

767.26(2) (2) The age and physical and emotional health of the parties.

767.26(3) (3) The division of property made under s. 767.255.

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).

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), 94-2653.

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), 93-3332.

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), 95-2730.

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 income available to a maintenance recipient was correct when 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 court 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 income division 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 Maintenance is not intended to provide a permanent annuity. Generally limited-term maintenance provides funds for training intended to enable the recipient to be self-supporting by the end of the maintenance period, and may also be used be to limit the responsibility of the payer to a certain time and to avoid future litigation. Absent a substantial change of circumstances, the parties may rightfully expect no change. The law of change of circumstances should not require a paying spouse to finance unwise financial decisions of the recipient. Murray v. Murray, 231 Wis. 2d 71, 604 N.W.2d 912 (Ct. App. 1999).

767.26 Annotation Under sub. (9), the contribution by one party to the other's eduction is not limited to contributions that arose only during the marital period. The court may freely consider the total contributions. Meyer v. Meyer, 2000 WI 132, 239 Wis. 2d 731, 620 N.W.2d 382.

767.26 Annotation It was not error for the trial court to consider under sub. (10) evidence of the parties having lived "separate lives" for much of their marriage. By not equalizing their incomes, the court in effect implemented what the parties had already agreed to in practice. Schmitt v. Schmitt, 2001 WI App 78, 242 Wis. 2d 565, 624 N.W.2d 14.

767.26 Annotation When a pension is divided by a qualified domestic relations order, and no value is assigned to either spouse's interest to be offset by other property awarded in the property division, a court is not prohibited by double-counting rules from considering pension distributions when determining maintenance. Wattstaedt v. Wattstaedt, 2001 WI App 94, 242 Wis. 2d 709, 625 N.W.2d 900.

767.26 Annotation A court's authority to order maintenance includes authority to impose obligations on the payee to ensure compliance with the payment order if those obligations are reasonably necessary to effect compliance with the payment order. Finley v. Finley, 2002 WI App 144, 256 Wis. 2d 508, 648 N.W.2d 536.

767.26 Annotation Sections 767.25 (6) and 767.261 regarding a fixed amount of interest on child support do not limit the trial court's authority to consider imposing interest on unpaid maintenance. A trial court has discretionary authority under s. 767.01 (1) to impose interest on maintenance arrearages. If the court decides to impose interest, it is under the trial court's discretion to determine the amount to impose. Cashin v. Cashin, 2004 WI App 92, ___ Wis. 2d ___, ___ N.W.2d ___, 03-1010.

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 History History: 1977 c. 105; 1979 c. 32 ss. 50, 92 (4); Stats. 1979 s. 767.261; 1983 a. 27; 1985 a. 29; 1993 a. 481; 1995 a. 279; 1997 a. 27, 191; 1999 a. 9, 32.

767.261 Annotation This section does not limit the authority a trial court would otherwise have to consider imposing interest on unpaid maintenance arrears. Cashin v. Cashin, 2004 WI App 92, ___ Wis. 2d ___, ___ N.W.2d ___, 03-1010.

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.