– from Gary R. in Hales Corners, WI

Question Details:

My wife and I began divorce proceedings about two years ago. We accepted extended mediation following a one-year separation. We are now going back to court to proceed with the divorce very soon. Before the separation and mediation period, when we first began the proceedings, we agreed to a stipulation concerning maintenance and property division. During the separation and mediation period, I sold some of my share of property and estate. My question is, now that we are proceeding with the divorce, can the money from the sale of my established property be double counted as income toward deciding the final maintenance award?

Family Law Attorney Response:

This is actually a very good question. Of course courts will look at a multitude of factors when deciding spousal support. Ultimately, the devil is in the details because each case is completely unique.

Double counting is usually attributed to a mistake in calculating income in regards to support, maintenance, property division, etc. One example of this is found in the case of Overson v. Overson 125 Wis. 2d 13, 370 N.W.2d 796 (Ct. App. 1985). In this situation, among other aspects, the wife appealed a predetermined award of maintenance. The husband cross-appealed based on an erroneous miscalculation, double-counting the sale proceeds after considering the property that was sold while calculating the maintenance award. The court decided that they did in fact double-count, and reversed the amount of maintenance based on that finding.

My advice is to consult with an experienced divorce attorney and discuss the details in depth.

Dan Exner, J.D.

Family Law Attorney

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