Tag Archive for: Wisconsin Supreme Court

Wisconsin Court Deciding Whether Alimony “Floors” are Enforceable

The Wisconsin Supreme Court will answer the question of whether a court-ordered minimum on spousal maintenance is enforceable according to public policy. The question is related to case of an ex-husband who asked the court to change his alimony order after he lost his job.

According to a recent article from the State Bar of Wisconsin, the court ordered the man to pay his ex-wife $1,203 per month for no less than 33 months. After 17 months, about halfway through the term of the order, the man lost his job. He asked the court to adjust the length of the order downward so that he would not have to continue paying the maintenance.

The court denied his request and the ex-husband appealed. The appeals court, finding uncertainty in the Wisconsin law on the subject, certified the question of whether a maintenance “floor” like the one in this case is enforceable.

Under Wisconsin law, maintenance “ceilings,” or a maximum that cannot be adjusted upward as circumstances change, is not enforceable. But up to now, state courts have not conclusively addressed maintenance “floors,” which prevent downward adjustments.

State appeals courts have held that floors are against public policy if the court does not include a time limit on the floor or at least an opportunity to review whether circumstances have changed since the ruling. But in a 2007 case, the Wisconsin Supreme Court mentioned in a footnote that maintenance floors are good for public policy because they ensure that the divorced couple’s children received a certain minimum of financial support. That comment was not part of the holding of the case, so it does not have the force of law, but it may indicate the court’s thinking on the question.

Source: State Bar of Wisconsin, “Case may clarify the enforceability of child support agreements that set minimum standards,” Joe Forward, January 11, 2011

Wisconsin Supreme Court tells ex-wife to wait for alimony

In a recent opinion upholding, the Wisconsin Supreme Court distinguished between pension benefits paid by a pension plan and disability benefits paid pursuant to the same plan.

In Topolski v. Topolski, the husband and wife both waived maintenance, sometimes referred to as alimony, when they got divorced. Mr. Topolski agreed to pay Mrs. Topolski $912 per month beginning “if and when” he started to receive pension and retirement benefits.

Mr. Topolski, an electrician, later became disabled when he was 53 years old. Accordingly, he began receiving monthly disability benefits from his pension plan. His ex-wife filed a motion for judgment for her monthly payments, with interest, in arrears from the date of his disability.

Mrs. Topolski received a judgment for $83,072 plus interest from the divorce court, and the judge held Mr. Topolski in contempt of court for not making the monthly payments to his ex-wife. Mr. Topolski appealed that order on the basis that the court’s order amounted to maintenance.

The Court of Appeals reversed the Circuit Court, and Mrs. Topolski appealed. Siding with her ex-husband, the Wisconsin Supreme Court held that the plain and ordinary meaning of the language in the parties’ agreement, “pension and retirement benefits,” did not include the disability benefits that Mr. Topolski had received from the pension plan. Instead, Mr. Topolski must begin paying Mrs. Topolski when he turns 62, the age when he becomes eligible for pension benefits.

A dissenting opinion pointed out that the Circuit Court merely divided the disability benefits, an asset that the marital settlement agreement did not dispose of in the divorce. The parties agreed to divide “all” pensions, said the dissent, and the disability payments were, in effect, a pension plan.

Source: WisLawJournal.com, “Be careful what you bargain for, you might just get it,” Gregg Herman, July 14, 2011

Topolski v. Topolski, 2009AP2433-FT, (Wis. 2011)