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Wisconsin Spousal Maintenance

Wisconsin Spousal Maintenance

By Maury D. Beaulier, Esq.

"Alimony" is the term used in many states for financial support paid to a ex-spouse after a divorce. In Wisconsin the term "alimony" has been replaced with the term "Spousal Maintenance." The terms are synonymous.

Maintenance is most often used to provide temporary financial support from one spouse to another when that spouse was financially dependent on the other during the marriage. In most instances maintenance is designed to provide the necessary support for a spouse until he or she either remarries or becomes self-supporting. In some states, an award of alimony may be based on marital fault. However, Wisconsin is a "no fault" divorce state which means that perceived marital misconduct such as infidelity or abuse are not considered in determining support obligations. Spousal Maintenance is an obligation that is independent of child support and property settlement obligations.

Unlike Wisconsin's child support statutes, there are no percentage guidelines to determine when spousal maintenance is appropriate or at what level. In Wisconsin, trial courts have broad discretion in deciding whether to award maintenance and in determining its duration and amount. As a result, spousal maintenance often becomes one of the most contested issues in divorce proceedings.

Spousal Maintenance Factors

Currently, Spousal Maintenance awards are granted pursuant to Wisconsin Statutes 767.26. Under this law the courts are guided by ten factors that should be considered in determining a spousal maintenance award. The factors include:

  1. The length of the marriage.
  2. The age and physical and emotional health of the parties.
  3. The division of property made in the divorce.
  4. The educational level of each party at the time of marriage and at the time the action is commenced.
  5. The earning capacity of the party seeking maintenance, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children and the time and expense necessary to acquire sufficient education or training to enable the party to find appropriate employment.
  6. The feasibility that the party seeking maintenance can be-come self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage, and, if so, the length of time necessary to achieve this goal.
  7. The tax consequences to each party.
  8. Any mutual agreement made by the parties before or during the marriage, according to the terms of which one party has made financial or service contributions to the other with the expectation of reciprocation or other compensation in the future, where such repayment has not been made, or any mutual agreement made by the parties before or during the marriage concerning any arrangement for the financial support of the parties.
  9. The contribution by one party to the education, training or increased earning power of the other.
  10. Such other factors as the court may in each individual case determine to be relevant.

No single factor is dispositive and the Courts must weigh all factors giving appropriate weight to each.

One important factor in determining whether spousal maintenance is paid and for how long is the length of the marriage. Shorter marriages often result in no award of spousal maintenance or lesser awards. Longer marriages may result in long term or even permanent awards. A second important factor in determining the level of spousal maintenance is the standard of living the parties enjoyed during the marriage. When faced with a long term marriage (fifteen years or more), often Wisconsin trial courts begin their evaluation of spousal maintenance with the proposition that a spouse that is dependant on the other for financial support is entitled to 50% of the earnings of both parties. This is considered to be a starting point for equalizing the standard of living for each party.

Awards, Denials and Modifications of Maintenance

If the parties are unable to resolve disputes related to spousal maintenance, a court may:

  1. award spousal maintenance;
  2. reserve spousal maintenance (not award maintenance currently but leave the matter open for further review);
  3. deny spousal maintenance.

Awards of spousal maintenance may be "temporary" or "rehabilitative", designed to rehabilitate the spouse so that he/she may become self-supporting, or "permanent."

No matter whether spousal maintenance is awarded, denied or reserved after a trial, the issue may be always be readdressed and spousal maintenance modified upon a showing that there has been a substantial change in circumstance making the original award (or denial) unreasonable or unfair. Under most circumstances spousal maintenance automatically terminates when one spouse dies or the spouse receiving maintenance remarries.

From a practical standpoint, it is unlikely that a Court denying spousal maintenance would later change that determination absent compelling circumstances. A compelling circumstance may include a critical illness befalling the party seeking maintenance which renders that person incapable of working or providing for their own support. There would also have to be a showing that the person from whom maintenance is sought has the ability to contribute.

Temporary awards of spousal maintenance usually dictate factual presumptions on which the award is based. For example, maintenance may be awarded for a period of five (5) years at a certain level predicated on the recipient enrolling in and completed educational courses and finding employment in that period of time. Either party may bring the matter back before the Court if the recipient becomes self supporting at an earlier date or, through no fault of his/her own, fails to find employment within the designated period. Orders setting forth detailed educational and employment time lines on which the maintenance award is based tend to favor the person paying spousal maintenance since the recipient must demonstrate good cause why the time lines were not followed or achieved to extend the spousal maintenance beyond that period.

Waivers of Spousal Maintenance

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