### COURT OF APPEALS DECISION DATED AND FILED September 11, 2024

Samuel A. Christensen Clerk of Court of Appeals NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2022AP1630 Cir. Ct. No. 2019FA 457 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT II

I N RE THE MARRIAGE OF :
T RACY D IANE D ANIELSON ,
P ETITIONER - A PPELLANT ,

V . C HRISTOPHER J OHN D ANIELSON ,
R ESPONDENT - R ESPONDENT .

APPEAL from a judgment of the circuit court for Kenosha County:
DAVID P. WILK , Judge. Reversed and remanded with directions.

Before Gundrum, P.J., Neubauer and Lazar, JJ.2022AP1630

2 ¶ 1 LAZAR, J. Tracy Diane Danielson 1 appeals from a judgment of divorce following her lengthy marriage to Christopher John Danielson. She contends that the trial court erroneously exercised its discretion in valuing and dividing the parties’ retirement assets with out considering the impact of their disparate social security benefits and by failing to consider those social security benefits in limiting the scope of the held

- open maintenance from Christopher to her. We agree that, while social security benefits them selves may not be divided in a divorce, it is appropriate for a court to consider the ir impact pursuant to W IS

. S TAT

. § 767.61(3) (2021

- 22) 2 when fairly and equitably dividing the marital estate. We further agree that a similar consideration of social sec urity benefits may be
relevant to held

- open maintenance.

¶ 2 Accordingly, we reverse and remand to the tr ial court for consideration of the disparity in the parties’ social security benefits and pensions with respect to the marital property division as well as to determine the impact of
this factor on the award and holding open o f maintenance.

BACKGROUND

¶ 3 After thirty

- one years of marriage, Tracy and Christopher , both of whom resided in Wisconsin, were divorced in 2021. At the time of divorce, Tracy was fifty

- nine years old, in good health, and working as a teacher in Illinois with an annual salary of approximately $89 ,000 . Christopher was fifty

- eight years old, also in good health, and employed as a maintenance t echnician earning

1 For ease of identification, we refer to the former spouses by their first names.

2 All references to the Wisconsin Statutes are to the 2021

- 22 version unless otherwise noted.2022AP1630

3 approximately $48,000 annually

. Upon “consider[ing] the dual objectives of ... support and fairness,” the trial court awarded maintenance in the amount of $750 per month to be paid to Christopher by Tracy. 3 When Tracy sought clarification regarding maintenance from Christopher to her, the court issued a supplement to its prior decision and order and stat ed that this issue would be held open because, “[a]s a teacher in the State of Illinois and participant in the Illinois Teacher
Retirement System, [Tracy] makes no contributions to social security .” This “reservation of maintenance is limited to a situation in which, for reasons not currently contemplated, [Tracy] is unable to enjoy the benefits of her retirement contributions through the I llino is Teacher Retirement System.”

¶ 4 The trial court also found that “the presumption of equal division ha[d] not been overcome,” and so endeavored in its decision and order to divide the parties’ marital property

— including each of their various retirement plan s

— substantially equally

. The most valuable of these retirement plans by far was Tracy’s pension from the Illinois Teacher Retirement System , having a present
value of approximately $1.1 million; Christopher’s two pension plans had a
combined present value of approximately $169,000 and Tracy’s other two
retirement accounts had a combined present value of approximately $97,000. Although the parties’ joint expert testified regarding Tr acy’s and Christopher’s expected social security benefits, the court did not refer to the fact that , owing to Tracy’s participation in her teacher’s pension program and her ineligibility to receive social security benefits based on her earnings as a teache r , Tracy’s

3 The order provides that “[m]aintenance shall end when [Christopher] remarries, dies, the maintenance is terminated by court order, or until he reaches the age of 67 AND is receiving his portion o f [Tracy’s] pension payments.”2022AP1630

4 monthly benefit was projected to be only $334 at age sixty

- seven while Christopher’s monthly benefit would be $1,878 at age sixty

- seven

. ¶ 5 Tracy appeal s , contesting both the property division and the scope of
the held

- open mai ntenance award

.
STANDARD OF REVIEW

¶ 6 This court reviews maintenance and marital property division
determinations under an erroneous exercise of discretion standard. Weiler v.
Boerner , 2005 WI App 64, ¶11, 280 Wis. 2d 519, 695 N.W.2d 833. “[A] discretionary determination must be the product of a rational mental process by which the facts of record and law relied upon are stated and are considered together for the purpose of achieving a reasoned and reasonable determination.”
LeMere v . LeMere , 2003 WI 67, ¶13, 262 Wis. 2d 426, 663 N.W.2d 789 (alteration in original ; quoting Hartung v. Hartung , 102 Wis. 2d 58, 66, 306 N.W.2d 16 (1981)). “As long as the trial court reaches a rational, reasoned decision based on the application of the co rrect legal standards to the record facts, the trial court’s exercise of discretion will be affirmed on appeal.” Sellers v. Sellers , 201 Wis. 2d 578, 585, 549 N.W.2d 481 (Ct. App. 1996).

¶ 7 Like marital property division findings, determi nations as to maintenance are subject to the trial court’s discretion and we will not reverse those
decisions absent an erroneous exercise of discretion. Steinmann v. Steinmann , 2008 WI 43, ¶20, 309 Wis. 2d 29, 749 N.W.2d 145; Grace v. Grace , 195 Wis. 2d 153, 157, 536 N.W.2d 109 (Ct. App. 1995) . When determining a hold open (or reservation) of maintenance, a court cannot leave maintenance open “for any and all purposes” when there is a limited basis for such a hold open. Grace , 195
Wis. 2d at 160. If a court does leave the door open forever or for any purpose, that2022AP1630

5 is an erroneous exercise of discretion and will result in a reversal and remand for the court to limit the applicability of the maintenance award. Id.

¶ 8 “A [trial] cou rt erroneously exercises its discretion if it makes an error of law or neglects to base its decision upon facts in the record.” King v. King , 224 Wis. 2d 235, 248, 590 N.W.2d 480 (1999) ; Kuhlman v. Kuhlman , 146
Wis. 2d 588, 590, 432 N.W.2d 295 (Ct. App. 1 988) (“ [I] f the court relies on an incorrect legal standard

— if it decides the case based on an erroneous view of the
law

— that constitutes an [erroneous exercise] of discretion and the decision may not stand.”)

. This court decides “any questions of law which may arise during our review of an exercise of discretion independently of the [trial] court

. ” LeMere , 262 Wis. 2d 426, ¶1 4 (quoting King , 224 Wis. 2d at 248).

DISCUSSION ¶ 9 A key component of Wisconsin family law

— especially as it relates to property division

— is the idea of “fair and equitable” distribution between the parties (taking into account, of course, our state’s marital property provisions). 4
See Lacey v. Lacey , 45 Wis. 2d 378, 38 2 , 173 N.W.2d 142 (197 0) ( “The division of the property of the divorced parties rests upon the concept of marriage as a shared enterprise or joint undertaking.” ); Ably v. Ably , 155 Wis. 2d 286, 289

- 90, 455 N.W.2d 632 (Ct. App. 1990) ( T he “mandate of fairness in maintenance applies to a property division as well and supplies an additional standard under which to review the court’s exercise of discretion

. ”)

. “It is the equitableness of the

4 W ISCONSIN S TAT

. § 767.61 (2)(a) contains the statutory exception to equitable division of marital property (by excluding property acquired by gift, by reason of death, or with funds from either of those sources).2022AP1630

6 result reached that must stand the test of fairness on review.” Bahr v. Bahr , 107 Wis. 2d 72, 81, 318 N.W.2d 391 (1982) (citation omitted)

. ¶ 10 W hile federal and state law are clear that social security benefits
may not be divided in a divorce, the question of their impact on the fairness of marital property division is ye t to be addressed in this s tate. We are asked to consider how disparate social security benefits should be taken into account by a trial court in a divorce proceeding in general, and in particular , when one spouse is a public sector employee who does not contribute to social security but relies solely upon a government pension. Tracy asserts that the court erred when it gave th is factor no consideration whatsoever as it considered how to divvy up the marital assets

. ¶ 11 In the alternative, Tracy contends that the trial court erred when it did not specifically hold open maintenance so that social security payments could be considered when in pay status. The court did hold open maintenance for Tracy, but she is only challenging the limited s cope of its order.

I. While social security benefits are not divisible in a divorce, they can be considered as a statutory property division factor.
¶ 12 Social Security, established in 1935 under Title 42 of the United States Code (“ T he Public Health and Welfare”) , was authorized by Congress “[f]or the purpose of enabling each State ... to furnish financial assistance to aged needy individuals” in order to provide “old

- age assistance.” 42 U.S.C. § 301.
F rom the very start, it is clear t hat “the primary objective [of the Social Security Act] was to provide workers and their families with basic protection against hardships created by the loss of earnings due to illness or old age.” Mathews v. d e Castro , 429 U.S. 181, 185

- 86 (1976); Raskin v. Moran , 684 F.2d 472, 476, n.6 (7th Cir. 1982) (“Congress’ broad purpose in establishing old

- age benefits as part2022AP1630

7 of the social security system was to create a public social insurance program which would protect aged workers and their dependents from lo ss of income.”); Conklin v. Celebrezze , 319 F.2d 569, 571 & n.5 (7th Cir. 1963) (citing T HOMAS F.
B RODEN , L AW OF S OCIAL S ECURITY AND U NEMPLOYMENT I NSURANCE 3 (1962) (social security has a “moral purpose” ) ).

¶ 13 “ [W] hile the [Social Security] Act does not create vested rights, the System is a contributory one, in which claimants (or their beneficiaries) are not to be treated as recipients of gratuities, but as insured wage earners ...

. ” Haberman v. Finch , 418 F.2d 664 , 667 (2d Cir. 1969)

.
A. Social security benefit s are not a divisible asset.

¶ 14 N either part y dispute s that social security benefits are not to be divided or parceled out between spouses in a divorce. The United States Supreme Court, which rep eatedly declines to opine on domestic relations and divorce proceedings

—

noting that that subject “belongs to the laws of the States and not to the laws of the United States,” Hisquierdo v. Hisquierdo , 439 U.S. 572, 581 (1979) (quoting In re Burrus , 136 U.S . 586, 593

- 94 (1890) )

— nevertheless will take jurisdiction when there is “a conflict between federal and state rules for the allocation of a federal entitlement.” Hisquierdo , 439 U.S. at 582. It did so in Hisquierdo with respect to protections afforded to retirement and social security
benefits , holding that “ a nti

- attachment” provisions, such as those regarding social security, 5 foster several public policy purposes: they “ensure[] that the benefits

5 “The Social Security Act specifically provides: ‘The right to alter, amend, or repeal any provision of this [Act] is reserved to the Congress.’” Hisquierdo v. Hisquierdo , 439 U.S. 572, 575 n.6 (1979) (alteration in original; quoting 42 U.S.C. § 1304).2022AP1630

8 actually reach the beneficiary” ; they “pre

- empt[] all state law that stands in [their] way” ; and they “protect [] the benefits from legal process.” Id. at 584. In essence, they “prevent[] the vagaries of state law from disrupting the national scheme, and guarantee[] a national uniformit y that enhances the effectiveness of congressional policy.” Id.

¶ 15 O bviously, o ur supreme court also adheres to th e anti

- attachment doctrine for social security benefits and has held that “federal law pre empts apportionment of social secu rity benefits by state courts.” Mack v. Mack , 108
Wis. 2d 604, 613, 323 N.W.2d 153 (Ct. App. 1982). “The anti

- assignment provision bars the assignment or transfer of ‘[t]he right of any person to any future payment’ of social security benefits.” Lakewood Credit Union v. Goodrich , 2016 WI App 77, ¶17, 372 Wis. 2d 84, 887 N.W.2d 342 ( alteration in original; citation
omitted ). This is because “ [ s ] ocial security provides for apportionment of some of the retiree’s benefits to his [ or her ] former spous e, preempting division by state
courts.” Mack , 108 Wis. 2d at 611 (footnote omitted)

.

B. Statutory factors are considered in equitable property divisions

. ¶ 16 I t bears repeating that Wisconsin is an equitable marital property division stat e : The principles of equitable distribution for allocating

property upon divorce are based upon the concept that marriage is a partnership or a shared enterprise in which each of the spouses makes a different but equally important contribution to the family and its welfare and to the acquisition of its property

.
Wierman v. Wierman , 130 Wis. 2d 425, 439, 387 N.W.2d 744 (1986) ; see also Lacey , 45 Wis. 2d at 382

. The l egislature created a rebuttable presumption of equal division in W IS

. S TAT

. § 767.6 1(3), which provides, in relevant part:2022AP1630

9 (3) P RESUMPTION OF EQUAL DIVISION

. The court shall presume that all property not described in sub. (2)(a) is to be divided equally between the parties, but may alter this distribution without regard to marital misconduct after considering all of the following:

.... (c) Whether one of the parties has substantial assets not subject to division by the court. (d) The contribution of each party to the marriage, giving appropriate economic value to each party ’ s contribution in homemaking and child care services.

.... (j) Other economic circumstances of each party, including pension benefits, vested or unvested, and future interests.

.... (m) Such other factors as the court may in each individual case determine to be relevant.
¶ 17 This is clearly :

an “ equitable distribution ” law, for, while it directs the court to presume that all property other than that acquired by one party through gift or bequest is to be divided equally, it allows “ alter[ati on] ” of that equal division upon consideration of several listed factors, including, inter alia, the parties’ earning capacities, their individual assets, and the contribution of each to the marriage ....
Kuhlman , 146 Wis. 2d at 590

- 91 ( alteration in original; quoting W IS

. S TAT

. § 767.255 (2003

- 04) (current version at W IS

. S TAT

. § 767.61 ) )

. It is with this underpinning that we consider whether Christopher’s nonattachable social security benefits fall within the contemplation of the statu te.

C. T rial courts should take social security benefits into consideration.
¶ 18 T he ultimate question is whether social security benefits expected
for one spouse fall within the factors a trial court should consider in achiev ing an2022AP1630

10 equitable marital property division. Clearly, the court is to consider the “contribution of each party to the marriage” and the salaries the spouses earned.
W IS

. S TAT

. § 767.61(3)(d). T he trial court should also look to the “economic
circumstances o f each party, including pension benefits , ” § 767.61(3)(j) , even if it determines not to divide them between the spouses

. See Mack , 108 Wis. 2d at
613.

¶ 19 Moreover, we conclude that social security benefits are “ substantial

assets not su bject to division by the court” and count as “other factor s [ that] the court may in each individual case determine to be relevant.” W IS

. S TAT

. § 767.61(3)(c) , (m). Our supreme court has “ repeatedly stated that ‘ the aim of all statutory construction is to discern the intent of the legislature, ’ and that a

‘ cardinal rule in interpreting statutes ’ is to favor a construction which will fulfill the purpose of the statute over a construction which defeats the manifest object of the act.” Wierman , 130 Wis. 2d a t 433 (citations omitted).

¶ 20 T he plain language of these statutory provisions is clear. Christopher’s social security benefits are not a divisible asset pursuant to federal and state law. They are also substantial in this case. Th us, they clearly fall within
at least one of the mandatory factors for a trial court to consider. See W IS

. S TAT

. § 767.61(3)(c). Christopher does present a cogent argument that social security benefits are not a property right, 6 but he fails to persuade us that they could not be

6 Flemming v. Nestor , 363 U.S. 603, 611 (1960) establishes that a person covered by the Social Security Act does not have an accrued right to benefit payments. Relying on the anti

- attachment principle, the Flemming court held that “[t]o engraft upon the Social Security system a concept of ‘accrued pr operty rights’ would deprive it of the flexibility and boldness in adjustment to everchanging conditions which it demands.” Id. at 610.2022AP1630

11 considered , for example, a nondivisible asset that requires consideration in a court’s deliberations

. Even assuming, arguendo, that social security benefits do not fall within the parameters of that prov ision

— or in cases down the line where social security benefits are not substantial

— they are also , without a doubt , a factor that may be relevant to a fair and equitable marital property division.

¶ 21 We are also persuaded that the trial cou rt could have further considered the disparity in social security benefits as a factor under W IS

. S TAT

. § 767.61(3)(d) because Tracy and Christopher made separate and distinct contributions ( out of their marital income) towards their retirement plans (pens ions and social security). A failure to consider both of their contributions is contrary to that statutory directive to give the “appropriate economic value” to all
contributions. See Id.

¶ 22 Moreover, a failure to weigh Christopher’s exp ected social security benefits would violate the statutory consideration of the “ [ o ] ther economic circumstances of each party, including pension benefits, vested or unvested, and future interests.” W IS

. S TAT

. § 767.61(3)(j). That provision “includes” specific benefits and interests, but is not limited to those categories. 7 The use of the word

“ ‘ [i]ncluding’ is another way of saying ‘is not limited to.’” State v. Steffes , 2013 WI 53, ¶21, 347 Wis. 2d 683, 832 N.W.2d 101. Our supreme court, in State v

. Popenhagen , 2008 WI 55, ¶43, 309 Wis. 2d 601, 749 N.W.2d 611, has held that

7 See also Steiner v. Steiner , 2004 WI App 169, ¶9, 276 Wis. 2d 290, 687 N.W.2d 740 ( holding , in the context of a mari tal property division, that a “sick leave account is an ‘other economic circumstance ’ akin to unvested pension benefits” because while “ [ n ] either is owned” or “can be transferred or sold,” “both have readily apparent value, even though that value is contin gent on future events.”).2022AP1630

12 the word “includes” is to be given a more ordinary, expansive, nonexclusive meaning unless “there is some textual evidence that the legislature intended the word ‘includes’ to be interpreted as a term of limitation or enumeration.” There is
no such textual evidence here.

¶ 23 While the question of whether a trial court may consider a spouse’s participation in the social security program and the amount of their ex pect ed
benef its when equitably dividing marital property is an issue of first impression in Wisconsin, it has been addressed and expressly allowed by other state courts

. 8
The holdings in the se cases, obviously, are not binding upon this court, but they illustrate other jurisdictions’ efforts to grapple with this issue in the context of a

8 See Boyer v. Boyer , 538 N.W.2d 293, 293

- 94 (Iowa 1995) (allowing social security benefits to be considered as a factor and holding that “a state court is not required to pretend to be oblivious of the fact that one party expect s benefits that will not be enjoyed by the other”); Herald v. Steadman , 322 P.3d 546, 554 (Or

. 2014 ) (“ Hisquierdo notwithstanding, most courts have allowed consideration of a party’s anticipated S ocial S ecurity benefits as a factor, among others, to be con sidered in fashioning an equitable property division.”); Dunmore v. Dunmore , 420 P.3d 1187, 1192 (Alaska 2018) ( stating that a “majority of jurisdictions, however, allow Social Security benefits to be considered as one of many factors necessary to ensuring a ‘just division’” of property) (citation omitted); Biondo v. Biondo , 809 N.W.2d 397, 403 (Mich. Ct. App. 2011) (“We join th e majority of state courts that have considered this question, and hold that the circuit court may consider the parties’ anticipated social security benefits as one factor, among others, to be considered when devising an equitable distribution of marital p roperty.”); Olsen v. Olsen , 2007 UT App 296, ¶22, 169 P.3d 765 (“We are persuaded by the reasoning o f the majority of state courts that have considered the issue, and hold that the Social Security Act does not require us to turn a blind eye to a spouse’s a nticipated social security income in fashioning an equitable remedy at divorce.”); Neville v. Neville , 2003 Ohio 3624, ¶11, 791 N. E .2d 434 (“[A] trial court, in seeking to make an equitable distribution of marital property, may consider the parties’ future Social Security benefits in relation to all marital assets.”); Zahm v. Zahm , 978 P.2d 498, 50 2 (Wash. 1999) (en banc) (“ [ A ] trial court may still properly consider a spouse ’ s social security income within the more elastic parameters of the court’s power t o formulate a just and equitable division of the parties’ marital property.”); Morehouse v. Morehouse , 121 P.3d 264, 267 (Colo. Ct. App. 2005) (a court “ may premise an unequal distribution of property ” on the fact that a party is likely to have greater soc ial security benefits); Mahoney v. Mahoney , 681 N.E.2d 852, 856

- 57 (Mass. 1997); see also Brane v. Brane , 908 P.2d 625, 627

- 28 (Kan. Ct. App. 1995) for a comprehensive and lengthy list of other jurisdictions that “support[] a trial court’s consideration of federal benefits under an equitable division of property theory.”2022AP1630

13 fair and equitable property division in a divorce proceeding and they support this court’s conclusion that expected social security benefits are, indeed, a relevant
fact or worthy of due consideration

. ¶ 24 Several of these cases are particularly persuasive

. I n Depot v. Depot , 200 6 ME 25, ¶17, 893 A.2d 995, Maine’s state supreme court noted that “all relevant factors” should be taken into account in order t o assist a trial court in
achiev ing its role in marital property division to “accomplish a just division.” The Depot court explained:

Just as few married couples engaged in a serious assessment of their retirement resources would ignore the availability o f Social Security benefits, courts should not be required to ignore reality and fashion a distributive award of the parties’ retirement and other marital assets divorced from the actual “ economic circumstances of each spouse at the time the division of pro perty is to become effective. ” Failing to consider Social Security benefit payments a spouse can reasonably be expected to receive in the near future may result in a distorted picture of that spouse’s financial needs, and , in turn, an inequitable division of the marital property. Id. (citations omitted).
¶ 25 Next, in Kelly v. Kelly , 9 P.3d 1046 (Ariz. 2000) , the wife participated in a federal retirement system (that included social security) while the husband participated in a civil retirement system (that did not). The Arizona state supreme court remanded the case to the trial court that had not considered social security benefits as a factor for marital property division, noting that while social security cannot be divided, it nevertheless cannot be ignored. Id. at 1048. The Kelly court focused upon a “concept of fairness” and explained that the social

s ecurity benefits would only be enjoyed by the wife and that contributions “could have [been] spent, saved, or invested” as the spouses saw fit

. Id. Thus,2022AP1630

14 “community funds have been diverted to the separate benefit of one spouse.” Id.
The court conclude d that “this situation compels an equitable response.” Id.

¶ 26 And finally, in Cornbleth v. Cornbleth , 580 A.2d 369, 423

- 24 (Pa. 1990), there were similar facts to this case: one spouse participated in a civil service retirement system wh ich prevented participation in the social security program. The Pennsylvania state supreme court, to avoid a “double blow” of dividing a pension without considering social security, looked to what a present value calculation of social security benefits wo uld have been if the spouse had been able to contribute and used that value to offset actual pension benefits. Id. at 42 6 . This, the court concluded, would enable equity to prevail by avoiding placing one spouse at a disadvantage due to their government work status.

¶ 27 The clear takeaway from these well

- reasoned decisions 9 is that appellate courts consistently rely upon fairness as the touchstone for equitable
marital property division. For a court to meet its obligation to justly divide marital property, no relevant factors can or should be ignored. See W IS

. S TAT

. § 767.61(3)(m)

. To disregard a reality in which one spouse is able to accumulate marital resources in such a way as to benefit only him self or herself by shield ing
that benef it upon a divorce presents a distorted view of the joint nature of marriage

9 Christopher also cited to Goelz v. Goelz , No. 2014AP103, unpublished slip op. (WI App Jan. 21, 2015) , a nonbinding unpublished opinion ; this is a violation of W IS

. S TAT

. R ULE 809.23(3)

. See State v. Milanes , 2006 WI App 259, ¶21, 297 Wis. 2d 684, 727 N.W.2d 94 (“Our supreme court has reasoned that the rule against citing unpublished cases is essential to the reduction of the overwhelming number of published opinions and is a necessary adjunct to economical appellate court administration.”); Tamminen v. Aetna Cas. & Sur. Co. , 109 Wis. 2d 536, 563, 327 N.W.2d 55 (1982). An “invitation to this court to consider its unpublished decision, or even the naked reference to it, violates both the letter and spirit of [ R ULE ] 809.23(3).” Kuhn v. Allstate Ins. Co. , 181 Wis. 2d 453, 468, 510 N.W.2d 826 (Ct. App. 1993) , aff’d , 193 Wis. 2d 50, 532 N.W.2d 124 (1995)

.2022AP1630

15 and is the epitome of inequity. If both spouses make financial decisions in the course of their marriage towards retirement plans, those marital decision s cannot be set aside when the marriage terminates. For a court to allow one spouse to unfairly leverage joint financial decisions would indeed be a “double blow” to the disadvantaged spouse. 10
¶ 28 D uring his thirty

- one year marriage to Tracy , Christopher contributed to the social security system such that, at the time of their divorce, his monthly benefits were expected to be $1,878. In contrast, Tracy’s social security benefits were expected to be significantly less ($344 per month ) due to the fact that she was required to stop contributing to social security while teaching in Illinois, and instead contribute to the Illinois Teacher Retirement System like all other public sector teachers in that state. She contends she made these p ayments to compensate for the lack of future social security benefits upon her retirement

.
¶ 29 In this case, while Tracy’s expected pension payments would be approximately seven time s greater than Christopher’s pension payments, Christophe r’s expected monthly social security benefits were more than five times greater than Tracy’s social security payments . Despite these great disparities in anticipated benefits , the trial court ignored the social security benefits and only equalized the par ti es’ pensions, which result ed in Christopher alone benefiting
from the social security contributions he made over the course of their marriage
while both parties were to receiv e a share of Tracy’s contributions to the public retirement system , which she was required to make in lieu of social security

10 A spouse who, during the marriage, paid money into a non

- social security plan loses the use of those funds during the marriage, and would also be subject to a possible divorce order requiring him or her to return a portion of those funds to the other spouse who does not have to also share any funds that spouse invested in social security during the marriage.2022AP1630

16 contributions. If she had made those contributions to social security , they would
have been untouchable

— just as Christopher’s contributions were

. “Because each spouse contributes equally to the prosperity o f the marriage by his or her efforts, each spouse has an equal right to the ownership of the property upon a divorce.”
Wierman , 130 Wis. 2d at 439. That did not happen here where the trial court took
one factor completely off the table when it divided th e marital property.

¶ 30 Courts are to follow W IS

. S TAT

. § 767. 61 when deciding how to divide marital property. McReath v. McReath , 2011 WI 66, ¶¶23

- 24, 335 Wis. 2d
643 , 800 N.W.2d 399 . That statute sets forth the rebuttable presumption of equal property division. Id. , ¶24 . Before a court may deviate from that presumption of equal property division, it must consider all of the factors in that “lengthy and detailed list of statutory f actors” in § 767.61(3). See LeMere , 262 Wis. 2d 426, ¶16. “This is not to say that the [trial] court is precluded from giving one statutory factor greater weight than another, or from concluding that some factors may not be applicable at all.” Id. , ¶25.

¶ 31 Tracy offers several options 11 for how the trial court could consider Christopher’s social security benefits as a statutory factor relevant to equitable marital property division upon remand . We will not invade the trial court’s
prer ogative on how to achieve its goal of equitable and fair division and will leave it up to th at court to s elect whichever means it deems appropriate in the
circumstances.

11 These options include allocating other retirement assets to balance overall retirement income, employing valuation methods to determine net differences between the retirement plans, dividing other plans to account for discrepancies against Tracy, allocat ing proceeds from the sale of assets, and ut ilizing its own methodologies.2022AP1630

17 ¶ 32 Accordingly, we conclude that the trial court erred as a matter of law
when it declined to consider the significantly different expected social security benefits of the parties . We reverse the judgment of divorce and remand for a new
consideration of all relevant property division fac tors under W IS

. S TAT

. § 767.61(3) , including expected social security payments

. T h e trial court is
instructed to revisit the factors that informed its ordered property division and to
now take into consideration social security benefits as well as the dis parity of
income streams that will exist due to Tracy’s inability to participate in the social security program.

II. Holding m aintenance open should be revisited

. ¶ 33 Wisconsin courts have held “that a [trial] court has the authority, if it provides appropriate and legally sound reasons, to ‘hold open’ a final maintenance decision after declining to make a maintenance award at that time of a divorce.” Hacker v. Hacker , 2005 WI App 211, ¶7, 287 Wis. 2d 180, 704 N.W.2d 371;
Grace , 195 Wis. 2d at 158.

¶ 34 Upon Tracy’s motion for clarification, the trial court indicated that
the initial order had not referenced its intent to reserve or hold open maintenance to Tracy due to a scrivener’s error . The court held:

This reserv ation of maintenance, however, is neither unfettered nor unlimited. Consistent with Grace v. Grace 195 Wis. 2d 153, 536 N.W.2d 109 (Ct. App. 1995), the reservation of maintenance is limited to a situation in which, for reasons not currently contemplated, [Tracy] is unable to enjoy the benefits of her retirement contributions through the Illinois Teacher Retirement System. Further, mere diminution of value due to market fluctuation will not constitute a revisi ting of the maintenance award.2022AP1630

18 ¶ 35 Maintenance is addressed in W IS

. S TAT

. § 767.56, but “[w]hile maintenance and property division are separate and distinct awards, ... they cannot be made in a vacuum.” Bahr , 107 Wis. 2d at 78

- 79. When a court holds maintenance open, courts may “base maintenance decisions, in part, on predictions.” 12 Woodard v. Woodard , 2005 WI App 65, ¶14, 281 Wis. 2d 217, 696 N.W.2d 221. H owever, they must be based upon facts in the record rather
than on “unfounded assumptions

. ” Id. Various facts can lead a court to hold open maintenance in an effort to achieve fairness and equity. “Because limited

- term maintenance is relatively inflexible and final, the [trial] court must take particular care to be realistic about the recipient spouse’s future earning capacity.” Plonka v. Plonka , 177 Wis. 2d 196, 202

- 03, 501 N.W.2d 871 (Ct. App. 1993) (quoting LaRocque v. LaRocque , 139 Wis. 2d 23, 41, 406 N.W.2d 736 (1987)).

¶ 36 Tracy’s argument with respect to maintenance is couched in the
alternative. She asser ts that if the trial court’s decision not to consider social security benefits for marital property division is upheld , this court should then order that maintenance be held open “for social security benefits to be considered
as a future income stream for purposes of maintenance.” Having already determined that social security benefits should be considered by the trial court as a relevant factor to effect a fair and equitable marital property division , we need not address this last issue other than to prov ide the court an ability to reconsider the
hold

- open of maintenance upon remand. It may be, on remand, that there is a

12 See Grace v. Grace , 195 Wis. 2d 153, 159

- 60, 536 N.W.2d 109 (Ct. App. 1995) (future health problems); Preiss v. Preiss , 2000 WI App 185, ¶¶9, 22, 238 Wis. 2d 368, 617 N.W.2d 514 (concern the parties’ circumstances may change); Weiler v. Boerner , 2005 WI App 64, ¶17, 280 Wis. 2d 519, 695 N.W.2d 833 (to ensure payment of debts until children reach the age of majority).2022AP1630

19 decision on marital property division that m oot s any reason to hold maintenance open. Or, it may be that a hold

- open order on maintenan ce is even more apt. Again, we are not instructing the trial court on what the ultimate result of its
deliberations sh ould be ; we simply return this matter for a new review.

CONCLUSION

¶ 37 “The equitable distribution

- partnership concept of marriage recognizes that a marriage possesses an important, intangible asset: the capability of both spouses to contribute to the marriage and to the acquisition of property through their labor.” Wierman , 130 Wis. 2d at 440 . Wisconsin law mandates that all relevant factors shall be considered by the trial court in order to fairly and equitably divi de marital property. Social security benefits constitute a relevant
factor that courts should consider in t heir deliberations. See W IS

. S TAT

. § 767.61(3). While they cannot be divided between spouses, a failure to consider social security benefit payments c ould result in a distorted and inequitable division of marital property.

¶ 38 Accordingly, we conclude that the trial court erroneously exercised
its discretion when it failed to consider the disparity in expected social security
benefits of the parties when it strove to achieve its goal of an equitable marital property division . W e therefore reverse and remand to the trial court for further proceedings consistent with this opinion.

By the Court.

— Judgment reversed and remanded with directions.
Recommended for publication in the official reports.