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 WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2022AP1630 Cir. Ct. No. 2019FA457

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

IN RE THE MARRIAGE OF:

TRACY DIANE DANIELSON,

 PETITIONER-APPELLANT,

 V.

CHRISTOPHER JOHN DANIELSON,

 RESPONDENT-RESPONDENT.

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 Danielson1appeals 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 without 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 themselves may not be divided 

in a divorce, it is appropriate for a court to consider their impact pursuant to WIS.

STAT. § 767.61(3) (2021-22)2 when fairly and equitably dividing the marital estate. 

We further agree that a similar consideration of social security benefits may be 

relevant to held-open maintenance.

¶2 Accordingly, we reverse and remand to the trial 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 of 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 technician 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.
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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 stated 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 Illinois 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 plans—

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 Tracy’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 teacher, 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 of [Tracy’s] pension payments.” 
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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 appeals, contesting both the property division and the scope of 

the held-open maintenance 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 correct 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, determinations 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, that 
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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] court 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. 1988) (“[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, ¶14 (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, 382, 173 N.W.2d 142 (1970) (“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) (The “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

 WISCONSIN STAT. § 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). 
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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 While 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 yet to be addressed in this state. 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 

this 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 scope 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 (“The 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. 

From the very start, it is clear that “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. 

de 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 part 
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7

of the social security system was to create a public social insurance program 

which would protect aged workers and their dependents from loss of income.”); 

Conklin v. Celebrezze, 319 F.2d 569, 571 & n.5 (7th Cir. 1963) (citing THOMAS F.

BRODEN, LAW OF SOCIAL SECURITY AND UNEMPLOYMENT INSURANCE 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 benefits are not a divisible asset.

¶14 Neither party disputes that social security benefits are not to be 

divided or parceled out between spouses in a divorce. The United States Supreme 

Court, which repeatedly 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 “anti-attachment” provisions, such as those regarding social 

security,5foster 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).
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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 uniformity that enhances the effectiveness of congressional 

policy.” Id.

¶15 Obviously, our supreme court also adheres to the anti-attachment 

doctrine for social security benefits and has held that “federal law preempts

apportionment of social security 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 spouse, preempting division by state 

courts.” Mack, 108 Wis. 2d at 611 (footnote omitted).

B. Statutory factors are considered in equitable property divisions.

¶16 It bears repeating that Wisconsin is an equitable marital property 

division state: 

 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 legislature created a rebuttable presumption of 

equal division in WIS. STAT. § 767.61(3), which provides, in relevant part:
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(3) PRESUMPTION 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[ation]” 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 WIS. STAT.

§ 767.255 (2003-04) (current version at WIS. STAT. § 767.61)). It is with this 

underpinning that we consider whether Christopher’s nonattachable social security 

benefits fall within the contemplation of the statute.

C. Trial courts should take social security benefits into 

consideration.

¶18 The ultimate question is whether social security benefits expected 

for one spouse fall within the factors a trial court should consider in achieving an 
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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. 

WIS. STAT. § 767.61(3)(d). The trial court should also look to the “economic 

circumstances of 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 subject to division by the court” and count as “other factors [that] the 

court may in each individual case determine to be relevant.” WIS. STAT.

§ 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 at 433 (citations omitted). 

¶20 The 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. Thus, they clearly fall within 

at least one of the mandatory factors for a trial court to consider. See WIS. STAT.

§ 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 property rights’ would deprive it of the flexibility and boldness in 

adjustment to everchanging conditions which it demands.” Id. at 610.
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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 provision—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 court could have further 

considered the disparity in social security benefits as a factor under WIS. STAT.

§ 767.61(3)(d) because Tracy and Christopher made separate and distinct 

contributions (out of their marital income) towards their retirement plans (pensions 

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 expected 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.” WIS. STAT. § 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 marital 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 

contingent on future events.”).
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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 expected 

benefits 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 these 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 expects 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 Social Security benefits as a factor, among 

others, to be considered 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 the 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 property.”); 

Olsen v. Olsen, 2007 UT App 296, ¶22, 169 P.3d 765 (“We are persuaded by the reasoning of 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 anticipated 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, 502 (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 to 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 social 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.” 
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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 

factor worthy of due consideration.

¶24 Several of these cases are particularly persuasive. In Depot v. 

Depot, 2006 ME 25, ¶17, 893 A.2d 995, Maine’s state supreme court noted that 

“all relevant factors” should be taken into account in order to assist a trial court in 

achieving 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 of 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 property 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 

security 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, 
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“community funds have been diverted to the separate benefit of one spouse.” Id. 

The court concluded 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 which 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 would have been if the spouse had 

been able to contribute and used that value to offset actual pension benefits. Id. at

426. 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 decisions9is 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 WIS. STAT.

§ 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 himself or herself by shielding

that benefit 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 WIS. STAT.

RULE 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 [RULE] 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).
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15

and is the epitome of inequity. If both spouses make financial decisions in the 

course of their marriage towards retirement plans, those marital decisions 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 During 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 payments 

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 times greater than Christopher’s pension payments, 

Christopher’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 parties’ pensions, which resulted in Christopher alone benefiting 

from the social security contributions he made over the course of their marriage

while both parties were to receive 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.
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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 of 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 the marital property.

¶30 Courts are to follow WIS. STAT. § 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 factors” 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 options11 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 

prerogative on how to achieve its goal of equitable and fair division and will leave 

it up to that court to select 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, allocating proceeds from the sale 

of assets, and utilizing its own methodologies. 
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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 factors under WIS. STAT.

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

income streams that will exist due to Tracy’s inability to participate in the social 

security program. 

II. Holding maintenance 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 reservation 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 revisiting of the maintenance award.
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¶35 Maintenance is addressed in WIS. STAT. § 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. However, 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 asserts 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 provide 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).
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19

decision on marital property division that moots any reason to hold maintenance 

open. Or, it may be that a hold-open order on maintenance is even more apt. 

Again, we are not instructing the trial court on what the ultimate result of its 

deliberations should 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 divide marital property. Social security benefits constitute a relevant 

factor that courts should consider in their deliberations. See WIS. STAT.

§ 767.61(3). While they cannot be divided between spouses, a failure to consider 

social security benefit payments could 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. We 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.