Counting an item as an asset (usually a pension) to be divided in property division, then also as income available for maintenance, is generally prohibited as “double counting.”¹ However, this rule is not absolute. “When analyzing whether there has been double counting, the focus should be on fairness, not rigid double-counting rules.”²

In the last 60 years, courts have carved out various exceptions:

Income from a pension. In a case involving property, maintenance, and child support, income from a pension is available for child support, even when divided as an asset between the spouses. The division of property is between the parties, not the child. Therefore, an asset is not double counted when resulting income is used for child support.³

Income derived from a post-divorce increase in pension value is available for maintenance, based on the theory that such subsequent income was not part of the original asset divided at divorce.⁴ Since it was never originally counted, it does not violate the double counting rule. This analysis requires a calculation of the amount of the current benefit due solely to post-divorce increases.

There is some case law indicating that an asset not specifically awarded in property division, offset by another asset, is available for maintenance. If a portion of the pension is not considered as an asset in the property division, it is available for maintenance.^5​ ​Taking a cue from these cases, counsel (and judges) must be exact regarding the treatment and interplay of the pension.

Keep in mind that income from an asset is separate from the asset itself, regarding income-producing assets such as rental property. Therefore, the property can be divided, and income used for maintenance, without even implicating the double-counting rule.⁶

Conclusion: It i​s Nuanced

Counsel and judges may cite the double-counting rule as a mandate. A more nuanced review of the rule reveals important exceptions. Always check these options before accepting a facile application of this rule.

This article was originally published on the State Bar of Wisconsin’s Family Law Section Blog. Visit the State Bar sections or the Family Law Section web pages to learn more about the benefits of section membership.

Endnotes

¹Kronforst v. Kronforst, 21 Wis. 2d 54, 64 (1963).

²McReath v. McReath, 2011 WI 66, ¶ 60, 335 Wis. 2d 643.

³Cook v. Cook, 208 Wis. 2d 166, 180 (1997).

⁴Olski v. Olski, 197 Wis. 2d 237, 247 (1995).

⁵Pelot v. Pelot, 116 Wis. 2d 339, 346 (Ct. App. 1983), Hokin v. Hokin, 231 Wis. 2d 184, 204 (Ct. App. 1999)(a retirement account treated separately from all other assets in the property division and not offset by the award of other assets is available for maintenance); Wettstaedt v. Wettstaedt, 2001 WI App 94, ¶ 10, 242 Wis. 2d 709 (income from a pension is available for maintenance if it is not offset in the property division by awarding the non-owning spouse another asset); Mack v. Mack, 108 Wis. 2d 604, 609 (Ct. App. 1982) (an asset that is awarded to a party as part of an unequal property division is available for maintenance).

⁶Arneson v. Arneson, 120 Wis. 2d 236, 244 (1984).