THE INTERRELATIONSHIP BETWEEN PENSION PAYMENTS AND MAINTENANCE UNDER WISCONSIN LAW

When the present value of a pension is not included in the marital estate for property division purposes, then the pension payments may be counted as income for purposes of determining maintenance. See Wettstaedt v. Wettstaedt, 2001 WI App 94, ¶ 20, 242 Wis. 2d 709, 625 N.W.2d 900.

In Wettstaedt, the Court of Appeals of Wisconsin explained its ruling as follows:

When an employee-spouse's pension is divided by QDRO, and no value is assigned to either spouse's interest to be offset by other property awarded in the property division, a family court is not prohibited by the "double-counting" rule from considering pension distributions in determining maintenance. We concluded in Pelot v. Pelot, 116 Wis.2d 339, 343, 342 N.W.2d 64 (Ct.App. 1983) that "[i]f the present value [of a pension] is included in the estate, then the pension payments themselves are not counted as income for purposes of fixing maintenance when the divorce is granted." Our present holding is simply the corollary-if the present value of a pension is not included in the marital estate for property division purposes, such as when a pension is divided by QDRO as in this case, then the pension payments may be counted as income for purposes of fixing maintenance