O'Flaherty Heim Birnbaum Kirchner & Curtis Ltd.

The Issue of Maintenance

By: Patricia M. Heim

FAMILY LAW: MAINTENANCE

Patricia M. Heim was the author of the Family Law Chapter in the Annual Survey of Wisconsin Law, a book published by the State Bar of Wisconsin CLE books. This publication, which is widely disseminated to members of the legal profession in the state of Wisconsin, discussed important case law developments as well as statutory changes in the area of family law in 2001. Ms. Heim has authored this chapter of the Annual Survey of Wisconsin Law for the past thirteen years.

The following is an excerpt from the chapter that discusses a court of appeals case dealing with the issue of maintenance:

In Wettstaedt v. Wettstaedt, 2001 WI App 94, 242 Wis. 2d 709, 625 N.W.2d 900 (review denied), Gary Wettstaedt sought a reduction in his maintenance obligation to his former wife, Diane, because of his intention to retire at age 55. A Qualified Domestic Relations Order (QDRO) entered at the time of the divorce provided that from a total pension benefit of $2,055 per month, Diane would receive $864. Gary would receive the remaining $1,195 per month when he retired, plus an early retirement supplement of $310 per month until he turned 62. Diane would receive a $212 supplement in addition to her QDRO benefit. The trial court decided that Gary’s decision to retire at age 55 did not justify eliminating his maintenance obligation to Diane, but the court did reduce Gary’s maintenance obligation by the amount of Diane’s monthly benefit. The trial court concluded that its decision did not represent “double-counting.”

The court of appeals agreed. It concluded that when an employee-spouse’s pension is divided by a QDRO at the time of the divorce, and neither party’s interest is given a value that can be offset by other property awarded in the property division, a family court is not prohibited by the “double-counting” rule from considering pension distributions in determining maintenance.

The court of appeals concluded that its holding in was not in conflict with Kennedy v. Kennedy, because the facts in the two cases differed. In Kennedy, both the husband and wife had pension plans. In the property division, each party received an interest in the other’s plan. The husband argued that, since the wife was entitled to receive an immediate monthly benefit from his pension and he was not presently eligible for such benefits, the present value of the wife’s interest in his pension should be factored into the equation for either property division or maintenance. The Kennedy court decided that there was no unfairness in dividing the parties’ pension benefits by a QDRO because if the husband chose to retire, he would be immediately eligible for benefits from his pension. Because the trial court elected to use a domestic relations order to give each party an equal interest in the other’s pension plan, the present value of the parties’ interest in the other’s benefits was irrelevant to the property division. The Kennedy court reasoned that the benefits the wife was eligible to receive immediately from her husband’s plan were payments to her of part of her share of the marital estate and, therefore, were not income to her for determining maintenance. The appellate court determined that the wife should not be obligated to use her property division to support herself if her husband’s income was otherwise sufficient to provide her with maintenance.

The Wettstaedt court held that the case before it was factually difference from Kennedy in that both Gary and Diane would be drawing on their respective pension benefits from Gary’s employer and both would be using the assets awarded to him or her from the property division. Also, Gary would not be able to keep paying maintenance at the previously ordered level after retiring, since his only post-retirement income would be his pension and some interest on investments.

Reprinted with permission from Annual Survey of Wisconsin Law, © State Bar of Wisconsin CLE Books 2001.

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