In a recent opinion upholding, the Wisconsin Supreme Court distinguished between pension benefits paid by a pension plan and disability benefits paid pursuant to the same plan.

In Topolski v. Topolski, the husband and wife both waived maintenance, sometimes referred to as alimony, when they got divorced. Mr. Topolski agreed to pay Mrs. Topolski $912 per month beginning “if and when” he started to receive pension and retirement benefits.

Mr. Topolski, an electrician, later became disabled when he was 53 years old. Accordingly, he began receiving monthly disability benefits from his pension plan. His ex-wife filed a motion for judgment for her monthly payments, with interest, in arrears from the date of his disability.

Mrs. Topolski received a judgment for $83,072 plus interest from the divorce court, and the judge held Mr. Topolski in contempt of court for not making the monthly payments to his ex-wife. Mr. Topolski appealed that order on the basis that the court’s order amounted to maintenance.

The Court of Appeals reversed the Circuit Court, and Mrs. Topolski appealed. Siding with her ex-husband, the Wisconsin Supreme Court held that the plain and ordinary meaning of the language in the parties’ agreement, “pension and retirement benefits,” did not include the disability benefits that Mr. Topolski had received from the pension plan. Instead, Mr. Topolski must begin paying Mrs. Topolski when he turns 62, the age when he becomes eligible for pension benefits.

A dissenting opinion pointed out that the Circuit Court merely divided the disability benefits, an asset that the marital settlement agreement did not dispose of in the divorce. The parties agreed to divide “all” pensions, said the dissent, and the disability payments were, in effect, a pension plan.

Source: WisLawJournal.com, “Be careful what you bargain for, you might just get it,” Gregg Herman, July 14, 2011

Topolski v. Topolski, 2009AP2433-FT, (Wis. 2011)