2009AP852 In re the Marriage of: Kelly v. Kelly

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Family
Property division; pension payments

Pension payments must be treated as part of the marital estate, subject to a presumptive 50/50 division.

"The parties' dispute over the court's treatment of Gary's pension centers on their reading of the case law. According to Crystal, Steinke, 126 Wis. 2d 372, permits the court to divide Gary's pension by dividing the monthly pension payments, but the court must nonetheless treat those payments as part of the marital estate, subject to the presumptive 50/50 division established under Wis. Stat. § 767.61(3). Gary responds that, while Steinke sets forth the general rule, Herdt v. Herdt, 152 Wis. 2d 17, 447 N.W.2d 66 (Ct. App. 1989), and Dutchin, 273 Wis. 2d 495, allow a circuit court the discretion to treat the pension as an income stream to the pensioned spouse, who then pays a portion of the monthly pension payments as maintenance. The circuit court here relied on this reading of Dutchin in awarding all the monthly pension payments to Gary and then considering this as income in determining maintenance for Crystal."

"We agree with Crystal that Steinke is controlling and requires that the pension be included in the property division and also requires that, if the court decides to divide the pension by dividing the monthly payments, the 50/50 presumption applies. We conclude that Herdt is consistent with Steinke, and to the extent Dutchin is inconsistent with Steinke, we must follow Steinke."

Reversed and Remanded.

Recommended for publication in the official reports.

2009AP852 In re the Marriage of: Kelly v. Kelly

Dist. IV, Rock Couny, Forbeck, J., Vergeront, J.

Attorneys: For Appellant: Arrowood, Teresa M., Janesville; For Respondent: Hoag, Jack C., Janesville

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