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,
295 Wis. 2d 541,
722 N.W.2d 155,
05-2487.
767.59 Annotation
A provision providing that neither parent could request a change in the amount of child support payments for a period of at least seven years from the date of the judgment entered, except in catastrophic circumstances was unenforceable. As is implicit from Ondrasek,
158 Wis. 2d 690: a marital settlement agreement entered into by divorcing parties that purports to limit in any way a child support payee's ability to seek a support modification upon a substantial change in circumstances is against public policy; it thus cannot provide a basis to estop the payee from seeking a modification. Ondrasek is not limited to unilateral waivers of a payee's right to obtain increased child support. Wood v. Propeck, 2007 WI App 24,
299 Wis. 2d 470,
728 N.W.2d 757,
05-2674.
767.59 Annotation
A stipulation to make future support unmodifiable in the event of a placement change is against public policy and void. Motte v. Motte, 2007 WI App 111,
300 Wis. 2d 607,
731 N.W.2d 657,
05-2776.
767.59 Annotation
While prohibiting the court from reducing arrearages, sub. (1m) does not prevent the parties from compromising or waiving them subject to court approval. Sub. (1m) applies in the case of an adversarial proceeding under this statute, and not to a court-approved joint stipulation. Motte v. Motte, 2007 WI App 111,
300 Wis. 2d 621,
731 N.W.2d 294,
05-2776.
767.59 Annotation
A stipulation that sets a ceiling and bars any change in the maximum amount of child support defeats the statutory goal of providing for the child's best interests as parents are precluded from seeking a modification of an amount necessary for the child's best interests and is unenforceable and contrary to public policy. Frisch v. Henrichs, 2007 WI 102,
304 Wis. 2d 1,
736 N.W.2d 85,
05-0534.
767.59 Annotation
To invoke equitable estoppel against a party seeking relief from a provision of a stipulation, the party must show: 1) that both parties entered into the stipulation freely and knowingly, 2) that the overall settlement is fair and equitable and not illegal or against public policy; and 3) that one party subsequently seeks to be released from its terms on the grounds that the court could not have entered the order it did without the parties' agreement. A 4-year prohibition preventing a payer from seeking a child support review for any reason contravened public policy was unenforceable. Jalovec v. Jalovec, 2007 WI App 206,
305 Wis. 2d 467,
739 N.W.2d 834,
06-1872.
767.59 Annotation
One shorthand definition for a substantial change in circumstances is that it is some unforeseen event that occurs after an agreement has been executed. Jalovec v. Jalovec, 2007 WI App 206,
305 Wis. 2d 467,
739 N.W.2d 834,
06-1872.
767.59 Annotation
There is no basis upon which a trial court can reduce that support owed to a payor spouse's marital child based on nonchild-support amounts paid to the payee spouse's nonmarital child. However, the benefit received by the non marital child for amounts received from the payor spouse would be appropriately accounted for in the maintenance award or property division. Ladwig v. Ladwig, 2010 WI App 78, ___ Wis. 2d ___,
785 N.W.2d 664,
09-1202.
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)(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)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)(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)(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)(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 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
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.
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.
