Group to discuss statewide guidelines

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When it comes to the amount and length of spousal maintenance, one size does not fit all.

State statute provides a list of criteria to consider when awarding maintenance in a divorce, such as the length of a marriage, age of the parties and property division.

But a new legislative study committee is exploring whether there is a way to make the process more predictable throughout the state.

Rep. Marlin Schneider, co-chair of the Joint Legislative Council, said several constituents objected to inconsistencies in the way cases are handled from county to county and that feedback served as the impetus for the committee.

“The feeling was that there is different treatment in terms of maintenance between say Wood County and Dane County,” said Schneider, who established the study committee. “There could be more equity.”

The 17-member committee is scheduled to meet for the first time on Aug. 24 and discuss possible changes or additions to Wis Stat. 767.56, which currently provides 10 guidelines for maintenance awards.

For some family lawyers, the current system, while not perfect, is appropriate to deal with unique issues that often arise in divorce cases.

Hansen & Hildebrand attorney Susan A. Hansen said she is open to review of the current statutes. But she would not favor a move to limit the discretion of judges to determine maintenance, such as the case with child support which is based on a federal formula to determine compensation.

“I personally think it is and should remain a discretionary determination that takes into account the specifics of an individual marriage and the financial circumstances of an individual couple,” she said.

It would be difficult to apply a maintenance formula to every situation that involved a stay at home spouse who raised children and surrendered his or her career for 10 to 20 years, said Hansen.

She said especially in this economy, it’s important for there to be some flexibility in determining spousal maintenance for someone going back to school or looking for a job in a lean market.

Johns, Flaherty & Collins attorney Ellen M. Frantz agreed that any movement to limit discretion would be counterproductive and she questioned whether a formula could even be considered for spousal maintenance.

“It would need to be about three blackboards long because of all the factors at play,” she said. “It’s just not that simple.”

Milwaukee County Circuit Court Judge and committee member William S. Pocan said he is going into the review with an open mind.

As a former divorce lawyer, Pocan said attorneys and the court might be well-served with some additional guidance on awarding maintenance.

He also noted that in more than 80 percent of divorce cases in Milwaukee County, one or both parties are pro se and unrepresented people might benefit from more certainty when going through the process.

“The beauty of child support is it’s so easy and everyone knows what formula is followed,” he said. “For that reason alone, more structured maintenance probably would be helpful in a county like Milwaukee.”

Still, Pocan added that guidelines should not be too “rigid” so as to eliminate all discretion.

Committee chair and attorney Anthony J. Staskunas said in his experience handling divorce cases, more predictability would be useful in simpler cases, but he added that complex cases require freedom to deviate from guidelines.

While the vast majority of cases involving maintenance settle before going to court, Staskunas is reluctant to endorse a statutory change that “ties judges’ hands.”

“You are not going to get those creative outcomes that are in the best interests of everybody,” said Staskunas, who serves as a State Representative in the Assembly.

Stafford Rosenbaum attorney Anthony J. Menting also cautioned against a “bright-line rule” which would install eligibility standards for maintenance, such as a minimum number of years of marriage.

He said people might be inclined to remain in abusive or dysfunctional marriages longer just to qualify for maintenance.

On the other hand, it could be a divorce incentive for potential payees, noted Menting.

“I’m concerned that if there was a rule like that it would be harmful to individuals who look at a number and ask, ‘do I want to stay married to get above this threshold?’”

Schneider said he didn’t form the committee to push a specific agenda, but simply to examine the current statutes and whether there is any benefit in modifying them.

Similarly, Staskunas said he took the appointment to discuss the state of spousal maintenance and determine if changes are necessary.

“I am not on this committee to make changes for sake of change,” he said. “At the end of the examination the members may decide that we have a statute that is working well.”

Jack Zemlicka can be reached at [email protected].