– from Donald D. in Milwaukee, WI

Question Details:

I am currently going through a divorce. My wife and I have substantial joint assets. When discussing the division of property, she agreed that my pension should be excluded from the property division. She is now having second thoughts. I told her that we could request that it be considered as a part of my income for maintenance, but she is reluctant to agree. Will my pension be counted as marital property or income?

Family Law Attorney Response:

This is a good question, and I can see why you would be concerned. The court does have broad discretion when dividing property, and their final award can only be speculated.

I do not have enough information based on your question, but I would advise you to seek legal council right away.

I can give you an example as to how this case could play out based on a similar hearing. In the case of Steinke v. Steinke 126 Wis. 2d 372, 376 N.W.2d 839 (1985), the wife had entered into an oral stipulation excluding the husbands pension plan from the marital property division. The court decided to count the pension as income for consideration of maintenance. However, the wife was not satisfied and appealed. The court of appeals affirmed, but the supreme court reversed the decision. This was based on a factor of the 50/50 presumption as well as fair and equitable determination. That was the outcome of this specific case. Yours may or may not have a similar outcome.

Dan Exner, J.D.

Family Law Attorney

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