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Spousal maintenance an ongoing concern

Gregg Herman

Gregg Herman

There’s an old joke about a husband not wanting to pay his wife any maintenance. The judge, after hearing the evidence, finds she is entitled to support and says, “I’m going to give her $1,000 per month.” The husband responds, “Damn nice of you, judge. I’ll kick in a couple hundred bucks of my own.”

Few financial issues are more emotionally fraught than maintenance. From the payor’s point of view, he (or, increasingly, she) works quite hard to earn his income. He’s already upset about having to share it with the government, not to mention to pay for his health insurance. Also sharing it with someone who – in his opinion – is not working for it, makes getting out of bed and going to work difficult to justify.

On the other hand, since most red-blooded Americans spend everything they earn (and frequently more), frequently the only “asset” to show for years of marriage is their ability to earn income. To the recipient’s point of view, she (or, increasingly he) earned that income just as much as her husband did. Maybe more.

While guidelines for child support have existed for many years – and arguably have worked pretty well for the most part – no such guidelines exist for maintenance.

While one judge may award 10 years of maintenance in a 10-year marriage with no children (affirmed on appeal in Steinmann v. Steinmann, (http://www.wicourts.gov/ca/opinion/DisplayDocument.html?content=html&seqNo=27486) 2008 WI 43, 309 Wis. 2d 29, 749 N.W.2d 145), another court might award only four years of maintenance in a marriage of nearly 34 years with children (reversed on appeal in Heppner v. Heppner, (http://www.wicourts.gov/ca/opinion/DisplayDocument.html?content=html&seqNo=36377) 2009 WI App 90, 319 Wis. 237, 768 N.W.2d 261).

As a result of the variances between trial courts, I suggested previously in this column that the Wisconsin Supreme Court accept review in Heppner, and in Wright v. Wright, (http://www.wicourts.gov/ca/opinion/DisplayDocument.html?content=html&seqNo=49969) 2008 WI App 21, 307 Wis. 2d 156, 747 N.W.2d 690.

In Wright, the Wisconsin Court of Appeals found that the trial court did not properly exercise its discretion, despite the trial court’s decision of 121 pages, containing 1,062 findings of fact. As I said at the time, in a decision of that length, there has be an exercise of discretion in there somewhere!

Despite my advice, the high court denied review in both cases. Shows you the respect I get (assuming the justices read my column…).

Legislative committee to weigh in

In the absence of better directions for the courts, the Wisconsin Legislature has stepped into the vacuum.

For the past several months, a “Special Committee on Review of Spousal Maintenance Awards in Divorce Proceedings” has been meeting and considering maintenance guidelines.

The committee, chaired by Rep. Tony Staskunas, D-West Allis, is tasked with studying:

“(a) [T]he purpose and goals of awarding maintenance; (b) making application of the maintenance considerations given in s. 767.56, Stats., (http://nxt.legis.state.wi.us/nxt/gateway.dll?f=templates&fn=default.htm&d=stats&jd=767.56) more uniform and predictable; (c) whether the statutes should provide guidance to the courts relating to amount and duration of a maintenance award; (d) whether cohabitation should be considered when revising maintenance orders under s. 767.59, Stats.; and (e) whether marital fault should be considered when determining a maintenance award.”

While such guidelines may serve a worthwhile purpose, the makeup of the committee creates grave concerns. While (fortunately) there are some judges with experience, there are no representatives from the Family Law Section of the State Bar of Wisconsin or from the Wisconsin Chapter of American Academy of Matrimonial Lawyers – two organizations that could lend impartial expertise to these issues.

Instead, the committee includes three maintenance payors and no maintenance recipients.

As an example of how that could play out, one committee member’s suggested legislation provides that the duration of a maintenance award would be determined as 1.5 years for every 10 years of marriage. So, in a 30-year marriage, the recipient would be “awarded” four and one-half years of maintenance. Gee, I wonder if the committee member who suggested that is one of the maintenance payors? Of course, that proposal is better than the one that would eliminate maintenance entirely.

Since I’ve always advocated getting involved to make change, rather than just complaining about it, I’ve decided to write to our lawmakers and the committee members. See next week’s column. I need to ask this committee just a few questions.

Gregg Herman is a shareholder with Loeb & Herman in Milwaukee, which practices exclusively family law. Herman can be reached via e-mail to gherman@loebherman.com.

10 comments

  1. Gregg – In my opinion, there should be no “spousal maintenance” awarded at all. It’s already bad enough that any wage earner can have imposed upon him or her “unilateral” divorce, without cause, against their will. Given this environment, spousal maintenance merely becomes “an incentive” to divorce someone and get a “free ride”. Spousal maintenance needs to be severely limited in its application, and denied to any person capable of working. As an example of this, please refer to Arizona Revised Statutes, Title 23, Section 319(A). It is long past time to reign in the family court from using the “marriage contract” as a “benefit program”. – Tim.

  2. The leading cause of divorce is marriage. Caveat emptor.

  3. It’s quite obvious to me why Timothy Frank is divorced! “Free ride” ????????????

  4. While I kept the roof over our heads,fed and clothed. Yes and No On the free ride.Though I beleive a spouse should have help from the payor.50% of there .take home for 10yrs is ridiculous when 1.They earned two licences to work in the same field.2.Are healthy.and 3.As in my case five years younger having more time for earnings/save for retirement.

  5. I am a divorced man paying ss to my ex wife. While married, my ex wife and I agreed she would stay home with our daughters until she was in school at which time she would go back to work. When the time came to go back to work, she refused. She also refused to do a budget or contribute in any way to our financial well being. By the way, I paid off her college student loans. She did not help with my college expenses in any way. She spent every penny I earned. She got a credit card without my approval and ran up $22,000 in credit card debt. After 22+ bad years of marriage I finally filed for divorce. Something she threatened to do on a daily basis for almost 10 years. She now lives in the home we owned together. I pay half the annual taxes on the home. She lives there with her boyfriend. I pay spousal support. She has a job and her boyfriend lives in the home I still own. He shares in the expenses meaning she benefits financially from him. In the end, wisconsin a divorce laws are not fair. There needs to be some reforms in the process.

  6. My ex was the petitioner and was awarded $2300 per month maintenance for 10 years. The judge included overtime I worked in the prior year and did not deduct what she earned on her hospital job which was part time by her choice. She waited a year and has now become full time. When I found out that a lowly mechanic like me pays more in alimony than former speaker Newt Gingrich I wonder what did I do to deserve such treatment. I have been financially destroyed by this and my side of the family had me on suicide watch for a while. I just keep working and paying with eight years of living on less than $2000 per month while the “queen” lives on a combine amount of at least $4500 per month. I’ve met others in similar situations that don’t even pay half what I pay. The law needs to be reformed with limits, especially on what a petitioner can receive. Texas for examle has limits on amount and duration. The current law is way too unfair.

  7. I have been married for 22 years. I am unsure of what to do. The first 11 years of our marriage I stayed home and watched our 4 kids (3 of his). He was only home on the weekends due to his nature of work. We were so happy even with him being gone so much. A terrible thing happened (I chose not to disclose) and it changed my life forever. Well a couple car accidents later made my life even worse. I suffer from PTSD, anxiety, and depression. I also attribute it to my husband never supporting me in anything I do. I had gone back to work once the kids were all in school and I worked up until my 1st car accident, and then again I worked until my second, and then I have worked all the way up until 2 years ago when the docs said enough was enough and I went on disability. I take care of the house, I have guardianship of my grandson (He of course does not as he did not feel it was necessary for him to take off of work and be part of the court proceedings or he would have been the other “Guardian” also. He just is never there for me. He does nothing with me. He lies around watching hunting and fishing shows, he never takes me out to dinner, nothing. I just don’t want to live like this anymore, and now the only income I have is from disability and I can’t live on that. And you say that no maintenance should be given? I made his plate of dinner up for him and handed it to him for the past 22 years, I did all of his laundry, his dishes, even the garbage, I took care of the garden, freezing and canning the vegetables. I took care of the kids and took them to all of their appts. He wasn’t there for any of this! And you tell me NO MAINTENANCE? Where do you get off?????

  8. Here’s a word problem for all you kids:

    Two business partners have a contract and one of them is dissatisfied and sues to disolve it. All the books are gone over and assets accrued during the contract are divided equally. The court voids the contract and they part ways. But the court felt sorry for one of them and did not view that person as potentially successful and tipped the scales. One former partner was now ordered by the court to continue the business alone and give a large portion of the profits to the other for a period of time until a new contract is entered by the payee or death of either party. If the payor refuses to pay it could mean jailtime for contempt.

    1) Was the court fair?
    2) Should laws be changed to restrict the latitude of court decisions and protect the rights of the payor when a contract is ended?
    3) Why is a marriage contract different than any other contract?

    I submit spousal maintenance and alimony should be abolished. When a marriage is over, it’s over and one spouse should not be punished for having more earning potential.

  9. Im shocked at how many of you are in the same sinking boat as me! It took nearly 3 years and 30k to my lawyers to end a 22 yr marriage to a woman who refused to work the entire time. I won primary placement of my daughter, a no brainer since during those 3yrs my ex was arrested for hitting her, convicted of her 2nd and 3rd dui’s, arrested several times for harassment of me and a friend resulting in restraining orders ( mine is 4yrs) and convicted of stealing my checks and emptying my personal checking account.a felony. I am a 49 old carpenter, living in my parents basement with 2 of my kids that the court demands pay her $1415 per month INDEFINITELY. An impossible task with a penalty of jail This on top of roughly $90000 cash payoff from our home sale. Justice? My ass!!

  10. I was married 25 years . I worked sent her to school . Now i want a devorce . She is on disablity . only thing she can do is gamble . Spend money i give for bills at casinos . I worked came home made dinner did laundri . Now i have to pay maintenance . Icant even pay my bills . we where on a leagal seperation .She has house then moved in with her mouther . So she has no bills .And i have to still pay her. wisconsin to look in to this problem . An make guide lines .

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