When making a judgment for annulment, divorce, or legal separation the Court can grant maintenance (Wisconsin’s word for alimony) to either party. Just like with placement of minor children there is no single way for the Court to decide if maintenance is appropriate; how long the maintenance should last; and how much that maintenance should be. Instead, the Court has ten factors to consider.
Any order for maintenance would terminate if either party dies, regardless of how much longer maintenance was ordered to last. If maintenance is not granted to a party, that party cannot come back to the Court and ask for maintenance, even if the other party wins the lottery the next day. In some cases, one party can have maintenance “held open” for a time. This occurs when there is reason to believe maintenance will be needed in the future, but is not needed currently, and the party wants the option to come back to Court to discuss maintenance.
Below are the factors the Court has to consider when making a decision about maintenance and trying to explain each factor. The factors below come from Wisconsin Statute § 767.56.
1. The length of the marriage.
The length of the marriage is often the initial question when figuring out if maintenance is an option. Here in Central Wisconsin, Courts often informally separate marriages into three groups based on length of the marriage:
(1) 0-10 years married is a short-term marriage
(2) 10-20 years married is a medium-length marriage
(3) 20 or more years married is a long-term marriage
The general concept of the length of marriage factor is that the longer two people have been married, the more appropriate maintenance would be and the longer maintenance should last.
Courts have the option of granting “indefinite” maintenance, meaning the Court does not put an end date on the maintenance. This is generally for marriages in or near the long term marriage category. For short term marriages, maintenance may not be a given, and if it is, it would likely be limited in time and may not equally divide the parties incomes. A medium length marriage would likely have maintenance and a starting point for the length of time would be approximately one half the length of the marriage (so a 12-year marriage would likely have around a 6-year maintenance claim).
2. The age, and physical, and emotional health of the parties.
The Court will consider the parties’ age, as the Court knows that retirement is likely for most individuals, and that will likely change the parties’ financial situation. If one party has physical or emotional health needs, the Court wants to ensure that those will be covered in the order.
3. The division of property made under Wisconsin Statute § 767.61.
With this factor, the Court examines how the parties are dividing their property when deciding maintenance. If one party is getting a larger portion of the property division, the Court may be less likely to give them maintenance as well.
4. The educational level of each party at the time of marriage and at the time the action is commenced.
This factor will blend into (5) (6) and (7) below. The Court needs to be informed of the educational levels of the parties, because it is examining the history of earnings are, and looking at what future earnings might be. Education is not the only piece of that earning evaluation, but it is an important part.
5. The earning capacity of the party seeking maintenance.
This includes 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.
The Court may need to evaluate what a party could be earning if they were in the workforce because the Court generally will not force a party to actually go to work. The Court can “impute” income to a party, meaning they can run calculations for maintenance as though the party was making more money than they actually are. In a divorce setting, Courts would prefer for a professional to give an opinion about what a party’s earning capacity is. It is not uncommon for a party to pay for a vocational evaluation, where a professional in the area of the general job market in a geographical area gives an opinion about what a party could be earning if they joined the workforce right now given their education and work experience.
6. 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, if so, the length of time necessary to achieve this goal.
If the party receiving maintenance has the potential to get to the same income level on their own, that the parties had during their marriage, the Court may be reluctant to award that party long term maintenance. The Court may give limited time maintenance to allow that party time to achieve that level of income. This factor also means that the standard of living the parties had while they were married matters in the Court’s determination.
7. The tax consequences to each party.
The Court can look at how maintenance would impact the parties’ taxes when deciding maintenance.
8. Any mutual agreement made by the parties before or during the marriage.
This is 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, if the 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.
This issue can be a hotly debated one during a contested divorce. During a marriage, it is not unusual for the parties to make some sort of arrangement like, “I’ll take this job and you stay home with the kids, but when the kids are older we’ll switch and I’ll stay home and you can pursue your career,” or “If you put me through undergraduate schooling, when I get a job you can go back to school for a degree and I’ll support you.” However, if a divorce commences before the deal can be realized, one party may want maintenance to fulfill that promise. Those agreements are almost never put in writing because, during the marriage, because no one is expecting to one day be in Court fighting about that issue.
The Court can take these informal arrangements into consideration when making a decision about maintenance. There are judges who will refer to marriage in general as a cultural contractual relationship where there are expectations for financial benefits to be even amongst the parties.
9. The contribution by one party to the education, training or increased earning power of the other.
This factor is similar to some of the others, but this factor specifically explains one party helping the other party advance in their career. Under Wisconsin law, if one party stays at home with the children so that the other party can advance their career, the Court looks at the two roles as equally important in the earning of income. That means the parent staying at home has the same dollar value as the parent that is bringing in the physical money, because one would not exist without the other.
10. Such other factors as the Court may in each individual case determine to be relevant.
Just like with placement (cite again to my previous article) the final factor is anything the Court finds relevant. That means just because the Court took something into consideration in one case, does not mean they will do it in the next case.
When deciding maintenance the Court takes into account the factors above and determines:
(1) should there be maintenance
(2) how much should maintenance be (usually in terms of a dollars per month)
(3) how long should maintenance last (usually in terms of number of months or indefinite)
The underlying goal of family law is equity (meaning fairness). The Court looks at the factors and strives for fairness to both parties based on the facts in the case. With all of these factors to consider, it is important to be prepared with evidence on all of the factors because you do not know what a particular judge will find important. Due to the complexity of the issue and how much discretion the judge has when deciding maintenance, and experienced Family Law Attorney can help you make sense of maintenance and all the factors there are to consider. Please call our office to meet with one of our attorneys if you need assistance with a Family Law Matter.