WisBar News: Supreme court may decide whether time bars ex-wife's right to retirement pension:

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    April
    04
    2012

    Supreme court may decide whether time bars ex-wife's right to retirement pension

    Joe Forward
    Legal Writer

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    April 4, 2012 – The Wisconsin Supreme Court may decide whether the state's statute of repose bars a former spouse from receiving one-half of her ex-husband’s retirement pension.

    Supreme court may decide whether time bars ex-wife’s right to retirement pension

    By org jforward wisbar Joe Forward, Legal Writer, State Bar of Wisconsin

    Supreme court may decide whether time 
bars ex-wife’s right to retirement pension April 4, 2012 – The Wisconsin Supreme Court may decide whether the state’s statute of repose bars a former spouse from receiving one-half of her ex-husband’s retirement pension.

    A marital settlement agreement and divorce judgment in 1989 gave Patricia Johnson half of her ex-husband’s accrued retirement pension from the date of divorce to the date of his retirement and required her to file a qualified domestic relations order (QDRO) to secure the right.

    The ex-husband (Michael Masters) retired in 2009, and Johnson submitted the QDRO to the circuit court in 2010, about 21 years and seven months after the divorce judgment was entered.

    The circuit court dismissed the case, ruling that Wis. Stat. section 893.40 barred Johnson’s enforcement motion, meaning she could not enforce the right to half Masters’ pension.

    Section 893.40 (known as the statute of repose) bars “actions” upon a court judgment or decree, unless commenced within 20 years after the judgment or decree is entered.

    Today, the District II Wisconsin Court of Appeals certified the case, Johnson v. Masters, to the state supreme court, asking whether section 893.40 applies.

    The appeals court asks: “When a former wife seeks to obtain a pension award by submitting a [QDRO] as required by the divorce judgment, and the submission is approximately one year after the former husband retires, but more than twenty years after the divorce judgment, is this an ‘action’ which is barred by the statute of repose, Wis. Stat. § 893.40?”

    In dismissing the case, the circuit court relied on Hamilton v. Hamilton, 2003 WI 50, 261 Wis. 2d 458, 661 N.W.2d 832, a case which barred an action to collect child support arrearages commenced more than 20 years after an amended judgment on child support was entered.

    Johnson argues that her pension claim did not “accrue” until after her ex-husband retired, so the statute of repose did not start running until his retirement in 2009.

    “[I]t may be too simplistic to say the clock always begins at the divorce judgment because in a case such as this one, rights are contemplated in the judgment that do not vest until a later date when the vesting of property occurs,” the appeals court noted.

    The supreme court accepts certifications if a majority of justices vote to accept it.