In a judgment of divorce, legal separation or annulment, the court may grant an order requiring maintenance payments to either party for a limited or indefinite length of time. Spousal maintenance is ordered to further two main objectives: fairness and support.
The fairness objective requires the court to ensure a fair and equitable financial arrangement between the parties in each individual case.
The support objective of maintenance recognizes the obligation to support a spouse in a manner in which that spouse was accustomed during the marriage. The support needed is measured by the parties’ lifestyle immediately prior to the divorce and that lifestyle they could anticipate if they were to stay married.
Wisconsin Maintenance Factors
In determining whether and what amount of maintenance should be awarded, the court is required to consider:
- the length of the marriage;
- the age and physical and emotional health of each of the parties;
- the division of property;
- the educational level of each party at the time of the marriage and at the time of the action;
- the earning capacity of the party seeking maintenance, including education, training, employment skills, work experience, length of absence from the job market, custodial responsibilities, and time and expense necessary to enable the party to find appropriate employment;
- the feasibility that the party seeking maintenance can become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage, and the length of time to achieve this goal;
- tax consequences to each party;
- mutual agreements made by the parties before or during the marriage;
- the contribution by one party to the education, training or increased earning power of the other; and
- other factors the court determines to be relevant in each specific case.
In Wisconsin, the court may not consider marital misconduct as a relevant factor in setting maintenance payments.
Amount of Maintenance
The court has broad discretion in setting the amount of maintenance. No set guidelines to determine the amount have been promulgated, and as a result, maintenance orders vary significantly by county and judge.
Appellate courts have approved the trial court practice of beginning the maintenance evaluation with the proposition that the recipient spouse is entitled to 50 percent of the total earnings of both parties.
In practice, many courts utilize spreadsheets to compare the parties’ monthly disposable incomes after considering both parties’ obligation to support their children and tax consequences. Pursuant to the Internal Revenue Code, maintenance payments are typically taxable to the recipient and deductible to the payor.
Courts prefer a set amount of maintenance, but the award may also be a percentage of the payor’s income in circumstances in which the payor’s income is unpredictable. It is common that maintenance is paid by income assignment and paid through the state’s trust fund, WI SCTF, however, payments may be made directly from one party to the other upon approval of the court.
Length of Maintenance in Wisconsin
The term of a maintenance order may vary for any number of reasons that are appropriate in a specific case. Most orders state that maintenance shall cease and be waived upon the death of either party or the remarriage of the recipient spouse.
Many parties also stipulate that maintenance will cease if the recipient cohabitates with another person or is in a “marriage-like” relationship. Some orders specify that the order shall cease when the recipient turns 65.
Some orders are for a set time, with the goal that at the conclusion of that time frame the recipient spouse would be self-supporting.
Maintenance may be the result of a stipulation or a contested hearing. A court may order a maintenance award for a fixed duration, or it may be indefinite.
A party seeking to modify maintenance must prove a material change in the circumstances upon which the ordered payments were predicated. The court is generally required to consider the same factors it considered when setting the original maintenance order. A motion to modify must be filed prior to the end of the maintenance term if it is fixed in duration.
Maintenance, if provided for by stipulation, may take many forms. In addition to the options available to the court, maintenance by stipulation may be made non-modifiable by setting forth specific terms of Section 71 payments.
By agreeing that the maintenance award is non-modifiable, the parties stipulate that the court shall have no further jurisdiction over the issue. The terms of the agreement are binding on the parties, regardless of any subsequent assertions by either party regarding the changes in their financial or living circumstances.
If maintenance is not ordered, it is either held open or waived. If maintenance is held open, the court retains jurisdiction over the issue and may order maintenance at a later time. Some counties, such as Milwaukee County, require that the purpose for the hold open be stated in the stipulation.
One common reason to hold open maintenance is for the specific purpose of payment of marital debts. The judgment of divorce allocates the parties’ debt; however, creditors are not bound by this division. A creditor could seek payment from one spouse, though it was assigned to the other in the judgment. This provision would allow a court to order maintenance from the spouse assigned the debt to the other as compensation.
If maintenance is waived, it cannot be requested for any reason in the future.