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), 96-3522
The limitation under sub. (1m) that a court may not revise the amount of child support due or the amount of arrearages restricts the court's authority to that of correcting mathematical errors only. State v. Jeffrie C.B., 218 Wis. 2d 145
, 579 N.W.2d 69
(Ct. App. 1997), 97-2453
Sub. (1r) modifies the common law.
A court may grant credit for support payments not made in accordance with a judgment only under the circumstances enumerated under sub. (1r). Equitable estoppel does not apply. Monicken v. Monicken, 226 Wis. 2d 119
, 593 N.W.2d 509
(Ct. App. 1999), 98-2922
Once the court determined that a reduction in support was warranted, even though the reduction was based on a finding that the payment level was inequitable and not that the payer had an inability to pay, the court did not have authority to condition that reduction on payment of arrearages. Benn v. Benn, 230 Wis. 2d 301
, 602 N.W.2d 65
(Ct. App. 1999), 98-2950
If a motion seeks to clarify a court's ambiguous property division rather than revise or modify it, it is not barred by former sub. (1) (a), 1997 stats. 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
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
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
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
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
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
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
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
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
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
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
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
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 four-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
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
, 325 Wis. 2d 497
, 785 N.W.2d 664
Maintenance may be awarded after the death of the payor if the parties expressly agree by stipulation. When the judgment provided that “maintenance shall terminate on August 25, 2014 and said maintenance payments shall not be modifiable in either duration or amount under any circumstance, and, further, shall not be subject to revision as provided for in s. 767.32," the language was unambiguous in precluding modification in any circumstance, including death. Wagner v. Estate of Sobczak, 2011 WI App 159
, 338 Wis. 2d 92
, 808 N.W.2d 167
There exists a framework governing child support stipulations and orders: 1) ceilings on child support payments are presumed to be invalid; 2) an unmodifiable floor on child support payments that is not limited in duration or that has an excessively long duration may violate public policy; 3) when the parties have entered into a stipulation for a limited period of time that the court has adopted, courts will attempt to give effect to the parties' intentions when the stipulation was entered into freely and knowingly, was fair and equitable when entered into, and is not illegal or violative of public policy; 4) courts retain the equitable power to consider circumstances in existence when the stipulation is challenged that were unforeseen by the parties when they entered into the stipulation if those circumstances adversely affect the best interests of the child. May v. May, 2012 WI 35
, 339 Wis. 2d 626
, 813 N.W.2d 179
Sub. (1f) (b) 2.'s rebuttable presumption that arises at 33 months represents what the legislature has determined is a reasonable time to reconsider support. Beyond the legislature's rebuttable presumption of 33 months, case law suggests that stipulations lasting more than four years could be too lengthy. So too, stipulations that are not related to a point in time that reasonably would support a reevaluation of the parties' support obligations and needs may not meet with the approval of the circuit court. May v. May, 2012 WI 35
, 339 Wis. 2d 626
, 813 N.W.2d 179
In shirking cases there is only one standard, based on reasonableness under the circumstances. There is not a different test where the parent was involuntarily terminated from employment. The reasonableness standard applies to all employment decisions made by a parent, regardless of the circumstances that led to the making of those decisions. In the event of involuntary termination, the focus is on the employee's employment decisions subsequent to termination and those decisions are subjected to the test of reasonableness under the circumstances. Becker v. Becker, 2014 WI App 76
, 355 Wis. 2d 529
, 851 N.W.2d 816
Under sub. (1m), a payment modification order is prospective only. This means that a court cannot, on the basis of one child's having reached the age of majority, refund or credit child support payments made prior to notice being given in an action to modify an ongoing support obligation. Zimmer v. Zimmer, 2021 WI App 40
, 398 Wis. 2d 586
, 961 N.W.2d 898
Property division. 767.61(1)(1)
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.
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:
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
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.
(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:
The property brought to the marriage by each party.
Whether one of the parties has substantial assets not subject to division by the court.
The contribution of each party to the marriage, giving appropriate economic value to each party's contribution in homemaking and child care services.
The age and physical and emotional health of the parties.
The contribution by one party to the education, training or increased earning power of the other.
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.
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.
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
, 2019 stats., and whether the property division is in lieu of such payments.
Other economic circumstances of each party, including pension benefits, vested or unvested, and future interests.
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.
Such other factors as the court may in each individual case determine to be relevant.
(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.
(5) Related provisions of judgment.
In a judgment described under sub. (1)
, the court shall do all of the following:
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.
Include all of the following in the judgment:
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.
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.
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.
(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.
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
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
There are at least three 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
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).
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
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).
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
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).
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
This section does not require a judge to terminate a joint tenancy. Lutzke v. Lutzke, 122 Wis. 2d 24
, 361 N.W.2d 640
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).
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).
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
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
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
A personal injury claim for medical malpractice is property subject to division. Richardson v. Richardson, 139 Wis. 2d 778
, 407 N.W.2d 231
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).
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).
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).
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).
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
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).
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).
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).
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).
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).
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).