State of Wisconsin Jeffrey P. Erbs Petitioner vs.

Circuit Court Chippewa County Branch III

CASE NO. 10 FA 11 Mary Ann Erbs Respondent Petitioner Jeffrey P. Erbs Brief Comes now, Jeffrey P. Erbs upon written Contention, whereby it is presented Legal Authority for this Cause in Action. This Cause holding several, by which we are to Consider, vidimus. As to the Jeffrey P. Erbs Disability Benefits of NEBF/IBW Richardson v. Richardson 139 Wis. 2d 778 supplies this Court, that the nature of a claim for personal injury renders the presumption of equal distribution established in sec. 767.255 inapplicable. Concluding that dividing a personal injury claim (before settlement of or a judgment on the claim) a circuit court should presume that the injured spouse is entitled to the entire amount recovered for loss of bodily function, future earnings (that is after the date of divorce) and pain and suffering ; that the uninjured spouse is entitled to the entire amount recovered for loss of consortium; and that the amounts recovered for medical and other expenses and loss of earnings incurred during the marriage are to be distributed equally. Citing Amato v. Amato 180 N.J. Super. 210, 434 A. 2d 639 (1981) in Krebs v. Krebs 148 Wis2d 51: the unique nature of a personal injury claim constitutes a relevant factor that warrants the alteration of the statutory presumption of equal distribution. Sec 767.255 (12). As the Amato court and others have noted, compensation for loss of bodily function, for pain and suffering and for future earnings replaces what was lost due to a personal injury. Just as each spouse is entitled to leave a marriage with his or her body, so the presumption should be that each spouse is entitled to leave the marriage with that which is designed to replace or compensate for a healthy body. We therefore conclude that the statutory presumption of equal distribution should be altered with respect to certain components of a personal injury claim. Instead of presuming equal distribution of a personal injury claim, the court should presume that the injured party is entitled to all of the compensation for pain, suffering, bodily injury and future earnings. With regard to other components of a personal injury claim, such as those that compensate for medical and other expenses and lost earnings incurred during the marriage, the court should presume equal distribution Leighton v Leighton 81 Wis 2d 620, 636-37, 261 N.W.2d 457 (1978) Concludes A disability benefit is not an asset acquired through the marital relationship and is not subject to property division. Weberg v. Weberg 158 Wis.2d 540, Interprets Richardson and Krebs and maintains we believe the logic of Richardson and Krebs would make the presumption equally applicable to a situation where the claim is not inchoate or payable at some future time but already has been made. The Richardson court outlined its reasoning as follows:

Compensation for loss of bodily function, for pain and suffering and for future earnings replaces what was lost due to personal injury. Just as each spouse is entitled to leave the marriage with his or her body, so the presumption should be that each spouse is entitled to leave the marriage with that which is designed to replace or compensate for a healthy body. We therefore conclude that the statutory presumption of equal division should be altered...Instead of presuming equal distribution of a personal injury claim, the court should presume that the injured party is entitled to all of the compensation for pain, suffering, bodily injury and future earnings. Hendrickson v Hendrickson n/k/a Baumgartner No. 2006A2586 Concludes one issue is clear and dispositive-Paul's disability pension was not subject to division. In Wisconsin, neither future disability benefits, nor the present value of those benefits are divisible assets in a divorce. Pfeil v Pfeil 115 Wis.2d 502, 504, 341 N.W.2d 699 (Ct. App. 1983).