Action to enforce division of retirement plan is barred by 20 year limit of Wis. Stats. §893.40. This language is mandatory and there is no exception for a family law action.
Court of Appeals concluded the circuit court erred in not dividing Gary’s pension by dividing the monthly pension payments as property subject to the 50/50 presumption. (Not published, but citable.)
While survivorship benefit is an asset, the trial court did not erroneously exercise its discretion by determining that it would be unfair to divide it equally where the underlying pension was treated as an income stream rather than as an asset. Trial courts have a broad discretion in attempting to fashion the most equitable and fair result. The court also did not erroneously exercise its discretion in treating the pension as an income stream, rather than as an asset.
Use of a coverture fraction to divide a retirement plan may be appropriate, but not in this case because the trial court considered the husband’s financial contributions to be greater than the wife’s contributions as homemaker and primary child caretaker.
Pension plan which spans marriage is a marital asset, subject to division.
Trial court erred in concluding that it could not exclude portion of husband’s pension earned prior to marriage.
Where other assets far exceed the value of the pension plan, it is not unreasonable for the court to award the plan in toto to the owner as part of his or her share of the property division.