Wisconsin law governing spousal maintenance gives wide discretion to judges.
A Wisconsin spouse contemplating divorce may be concerned about spousal maintenance: the transfer of money for support from one ex-spouse to the other, usually monthly, after the marriage ends. Of course, whether maintenance, also called alimony or spousal support, is ordered and what the terms of the order will be is important to a divorcing spouse whether he or she is likely to pay alimony, or to receive it.
Maintenance payments can significantly impact the lifestyle of each party after the divorce, and Wisconsin law gives the judge wide discretion in fashioning maintenance arrangements, as compared to that of some other states.
When people get divorced, normally they try to negotiate a comprehensive agreement that settles all the legal issues like maintenance, but also child support, child custody, visitation, property division and more.
Marquette University Law School Professor Judith McMullen has blogged about her concerns that Wisconsin law gives the judge such wide discretion to determine proper alimony that negotiating spouses do not have enough of an idea how a judge is likely to rule. If the outcome in court is so uncertain, the professor feels that a spouse may settle for less than he or she needs or deserves because going to court on the issue would be a “roll of the dice.”
This is one reason why a divorcing Wisconsinite should seek experienced legal counsel. A Wisconsin family lawyer who has worked with Wisconsin maintenance law with previous divorce clients will understand the subtleties of the law and know how judges have reacted to similar financial and personal circumstances in the past. Such knowledge will allow a divorce attorney to give more informed legal advice and guidance in negotiating the terms of maintenance.
If the parties cannot negotiate the terms of alimony, the judge will have to do it for them as part of the divorce decree.
Professor McMullen is correct about the broad discretion granted to judges deciding maintenance awards in divorces (and in other similar situations). The statute says the maintenance payments can be ordered for a limited time or indefinitely, although it terminates by law at the death of either ex-spouse or by court order if requested at the remarriage of the receiving ex.
The law requires that the judge consider all these factors in deciding whether to order maintenance:
- Marriage length
- Age and physical and emotional health of each spouse
- The division of property in the divorce
- Educational levels of each at the beginning and end of the marriage
- Earning capacity of the spouse who would receive maintenance, including whether the ex-spouse will have to care for children, and time and expense to get job training or education to become appropriately employed
- “Feasibility” of receiving spouse (payee) becoming financially independent at a comparable standard of living to that of the marriage and how long this would take
- Tax consequences
- Agreements of the parties like a prenuptial or postnuptial agreement that contain financial terms relevant to support
- Contributions by one spouse to the “education, training or increased earning power of the other”
- “Such other factors as the court may in each individual case determine to be relevant”
The last factor allows the judge to consider any aspect of the circumstances of the divorcing parties that the judge feels is relevant to the maintenance decision. Profession McMullen is particularly concerned that these factors are given no particular weight by the Wisconsin statute, leaving the weight to be assigned to each entirely up to judicial discretion.
Keywords: Wisconsin, spousal maintenance, discretion, judge, divorce, alimony, spousal support, spouse, Professor Judith McMullen, court, factor, relevant, weight
