Are Sick Leave accounts subject to property division in Wisconsin?

June 6, 2018 Pre Divorce


Just when you thought you had heard everything that a couple might be fighting about in a divorce case, you stumble across a new issue or asset pertaining to whether a person’s accrued sick time or sick leave account is subject to equal property division in Wisconsin? It appears over the years the answer legally has changed. in 2000, the answer appeared to be no. In 2004 and since that date, the answer appears to be yes.

In the 2000 case, that of Preiss v. Preiss, 238 Wis. 2d 368 (Court of Apppeals 2000),  thee court stated the following:

“We determine that (the husband’s) sick leave account was erroneously considered an asset of the marital estate. (The husband) cannot convey his interest in the account; he cannot gift it; he cannot transfer it. Because the account has no cash value and cannot be sold or transferred, it also does not have a fair market value. Property to be divided at divorce is to be  valued at its fair market value. Fair market value assumes sale by one who desires, but is not obligated to sell and purchase by one willing but not obligated to buy. A transaction that would determine the property’s fair market value cannot be made. If property has no fair market value, the court cannot place an independent value upon it, and it should thus not be included as an asset in the marital estate.”

“The account does indeed have an intrinsic value. It has value (to the husband), but this value is not accessible to anyone else. In summary, we (the court) determine that the circuit court’s inclusion of the sick leave account as an asset for division was clearly erroneous. The compnent of the property division is therefore reversed.”

It took less than four years later for the court to reverse itself and decide basically the exact opposite. The case is Steiner v. Steiner, 276 Wis. 2d 290 (Court of Appeals 2004). In this case, the wife argued that the prior Preiss case, only prohibits treating sick leave accounts as divisible property and that under the property division statute, a sick leave account is exactly the tupe of asset courts are permitted to consider as backround information when deciding whether to deviate from an equal property division.

The concluded: “We agree (with the wife) that (the husband’s) sick leave account is an ‘other economic circumstance’ akin to unvested pension benefits. Neither is owned, and thus, neither can be transferred or sold. Still, both have readily apparent value, even though that value is contingent on future events. ”

“If an asset can be valued with sufficient accuracy for purposes of determining appropriate maintenance and child support, we discern no reason why it cannot be a consideration under Wis. Stat. 767.255 (3) (j), (now s. 767.61) for property division purposes.”

“Both sick leave accounts and unvested stock options have uncertain value because their value is contingent on future events. If unvested stock options may be treated as divisible property, courts should be permitted, at a minimum, to use sick leave accounts as backround consideration for purposes of determining an equitable property division.”

If you have questions about property rights when going through a divorce in Wisconsin, contact the experienced family lawyers at Karp & Iancu, S.C. today for an initial and complimentary confidential consultation.