Law Gone Wrong: Wisconsin’s Spousal Maintenance Statute

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Category: Family Law, Wisconsin Law & Legal System

This is the fourth post in an occasional series entitled “Law Gone Wrong.”  The editors of the Faculty Blog invited Law School faculty to share their thoughts on misguided statutes, disastrous judicial decisions, and other examples where the law has gone wrong (and needs to be nudged back on course).  Today’s contribution is from Professor Judith G.  McMullen.

The current Wisconsin statute governing spousal maintenance, §767.56, is an undoubtedly well-meaning legislative attempt to give broad discretion to judges who must make difficult decisions about the division of financial assets at the time of a divorce.  I believe, however, that the breathtakingly broad discretion granted under the statute is a mistake.  

Spousal maintenance, also known as alimony, is the payment by one ex-spouse for the support of the other ex-spouse.  Although media accounts of celebrities like Tiger Woods may leave the impression that maintenance payments are commonplace (not to mention large), in fact only a small percentage of divorce judgments include awards of spousal maintenance.  Divorcing couples may bargain for and agree to different maintenance outcomes, and those agreements are generally incorporated into their divorce judgments and subsequently enforced.  If the parties do not agree, however, §767.56 says that the court “may grant an order requiring maintenance payments to either party for a limited or indefinite length of time” upon consideration of the factors listed in the statute.

The list of factors that the judge must consider is infinitely broad, and includes the length of the marriage, the health of the parties, the educational levels of the parties, the job experience, job history, and job prospects of the parties, as well as any contributions each might have made to the increased earning power of the other party.   The court is further directed to consider “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.”  Finally, the court must consider “[s]uch other factors as the court may in each individual case determine to be relevant.”  In other words, a judge can consider virtually anything.

Allowing judges to consider each case on its own merits seems at first like an ideal way to achieve fair resolutions in the infinite variety of divorce cases that are filed in this state.  Judges are highly educated after all, and the vast majority of judges are dedicated to trying to achieve justice in the many cases that come before them.  Even so, I find the super-broad discretion of § 767.56 to be troubling.

Here’s the thing:  the many factors that a judge must consider are not assigned any priority.  If a marriage has lasted 25 years, is that more or less important than the fact that one spouse obtained a professional degree during the marriage?  Is the fact that one party was the primary caretaker of the couple’s children for 10 years more or less important than the fact that the other party has chronic health problems?  The answer is that the relative importance of the listed factors, as well as what other factors might be dispositive, is solely up to the discretion of the judge.  Since each judge comes to the case with his or her own unique values and expectations, the relative importance of relevant factors may vary greatly from judge to judge.  This makes alimony outcomes entirely unpredictable.

 Absolute unpredictability of legal outcomes arguably has many consequences, but here I am concerned with only one: a totally unpredictable outcome skews bargaining behavior, and likely favors risk-takers and disfavors risk avoiders.  The stereotypical spouse likely to receive spousal maintenance payments would be a woman who has been married for over 20 years, and who spent most of that time as a full-time mother and housewife, perhaps also entertaining and otherwise supporting her husband’s career.  Statutes like §767.56 do not mandate an award of alimony to such a woman, and instead allow a potentially infinite number of “other factors” determined by the court to be “relevant” enough to result in the denial of maintenance.  Faced with uncertain financial prospects, the soon-to-be-ex-wife may settle for half or a bit more of the property, rather than petitioning for alimony that might not be awarded.  Indeed, her lawyer may well advise her to settle for the bird-in-the-hand of a property settlement.  The problem is that many women in this situation later discover that their diminished job prospects will not support anything like their marital standard of living, and they may rapidly exhaust their property nest-eggs after the divorce.  Moreover, a waiver of alimony is final, and the court has no discretion to re-open the case and award spousal support, even if the ex-wife is destitute.

If the spousal support statute offered more guidance such as a formula (as in child support cases), a starting presumption (as with property division) or even an ordering of priorities, divorcing couples could bargain with each other in a more informed and fairer way.  As it stands now, however, a petition for alimony is a roll of the dice.  If a divorcing spouse is not a gambler, her ex might successfully persuade her to settle for less than she needs, and less than she would receive in a more equitable system. 

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12 Responses to “Law Gone Wrong: Wisconsin’s Spousal Maintenance Statute”

  1. Clearly when one spouse uses the current law as a weapon, lies to the court, commits health insurance fraud, and still gets an increase in what I prefer to call ” private welfare” there is something terribly wrong with the system.

    I would appreaciate discussing this with someone from the law school.

    Ken Seubert

  2. Shonda Jackson-Jones Says:

    How is it fair to a man who was married for 15 years, never had a child because his wife didn’t want to mess up her figure, only worked part-time jobs, openly cheated on her husband, and turned into a crackhead, pay $300/wk INDEFINITELY? She is able to work a full-time job, her health history is pretty good, and she also will receive a GOOD lump sum of his pension when he retires. He is now remarried and happy with children (what he has always wanted) but is struggling to pay their current bills. Please can someone answer this for me because I’m confused? I can understand the ex-spouse receiving for maybe five years or until re-married, whichever one comes first, but the indefinite thing is boggling to me.

  3. Great article by Ms. McMullen. How is it that child support, which is arguably the most important aspect of divorce, is dictated by formula, but spousal support is totally at the whim of the judge? The only people happy with the current system are the lawyers and the people awarded unwarranted amounts of alimony. Everyone else is totally disgusted.

    Situations like Ann Zebow’s (above) should be enough to get women riled into action, but in reality, the National Organization of Women (NOW) is one of the PRIMARY opponents of alimony reform. NOW members should be ashamed of themselves for allowing their sisters to be abused like Ann has been. Women now get the majority of degrees at all levels, are the higher earners in 35% of marriages, and in a few years will be probably be paying alimony as often as men. Meanwhile, NOW throws up roadblocks in every state where alimony reform is attempted. It is time to come into the 21st Century, ladies.

  4. This law is old and outdated. My ex filed for divorce after a 34 year marriage. She did not work. I got hit with big time support payments. Prior to the divorce, she moved to Arizona, started cleaning homes for $25 per hr. She claims due the economy, she can only find 10 hours of work per week. I believe she is also hiding a portion of income. On top of that she is hiding behind her medical issues of arthritis and a few more things. Her doctor says she can work no more than 30 hours per week. Last year from Jan 2012 to the end of Oct, 2012, my income dropped $8000. Of course I am now in arrears, around $800. Nov 1,2012 had to take a medical leave for carpal tunnel surgery. I filed a motion to get my support suspended from the day of my 1st surgery to the time I go back to work, which was 11 weeks off. During that time I was on S T Disability which was less than 1/2 of my wages and about $400 short of my monthly expenses. The court Commissioner ruled that I should have used 2 weeks vacation for the first part of my medical leave, even though it was explained to him that you cannot take vacation pay while you are on S T Disability, which starts the first day I was off. He ordered me to pay her the full weekly support for 2 weeks plus $100 per week for the other 9 weeks I was unable to work. Being down $8000 and minus income for the last 2 months of the year while out on medical leave and now I still have to pay?? He also ordered that it come out of my tax return, I also have to E-file and have it paid by March 8th, 2013. My hearing was Jan 22,2013. Seriously? How fair is that? She doesn’t try to become self-supportive. I thought that, the reasoning behind maintenance was that a person could and should try to support themselves. I also have other medical issues (arthritis, nerve damage in my neck, tendonitis, cancerous tumor removed 5 years ago), and am 59 years old with no end date to my support payments. My health issues don’t seem to matter. On top of all that, she got approx $287,000 of my 401K, to which she contributed $0, and she is sitting on that. I will have to work myself into a early grave just so she can sit on her butt, why?? Because the law allows her to do it and it seems like the Judges and Court Commissioners are there to only look at numbers and adjust them as they feel like.

  5. I realize that this law seems unfair but from my point of view I think it is necessary sometimes. I have become very ill and cannot work. I am on disability. Our finances took a big hit without two incomes, but my husband wanted to keep living like we were, with both of our incomes. Soon we were out of savings and he said I should cash in my 401K, which I did. So now everything is gone and he wants out, with disability payments I would not be able to pay for an apartment. Meanwhile he has a good paying job why shouldn’t he have to pay me. Or at least pay me the amount of my 401K that I had to cash in. Perhaps there should be limits but this law needs to stay on the books, otherwise you will have people leaving their spouses high and dry.

  6. Rick Cantrell Says:

    Here’s a word problem for all you kids:

    Two business partners have a contract and one of them is dissatisfied and sues to dissolve 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.

    I have been told that my word problem was unfair and marriage is nothing like a business.

    Unfair? The government and courts made marriage a business partnership through legal involvement, licensing and taxation. Choosing not to work, like any choice has an element of risk. Was the person forced to abandon employment and stay home to raise children or even have children? I doubt it. There are plenty of single moms out there that work and raise kids so staying home is not a requirement of marriage. Spousal maintenance has become a financial safety net for those that chose not to work.

    Two consenting adults do indeed have equal opportunities, whether or not they exercise those opportunities is an individual choice. If that choice turns out to be the wrong one, nobody should owe you anything. You made a clear choice in life to stay at home, cook, clean etc. and have someone else provide for all your basic needs in lieu of a paycheck. By that logic, former employees should be paid “maintenance” by employers that terminate them. One party works to help the other succeed and gets nothing in return when the relationship ends. How is marriage not like a business partnership?

  7. Terry Hoppa Says:

    One of you sounds like a huge misogynist. I won’t point fingers.

  8. Paula Jensen Says:

    I understand the maintenance to a point. Open ended maintenance I don’t get. My husband’s ex-wife is taking him back for more money because he changed jobs and is making more money. She wants her half. She is taking us to court, she is disabled, she has people coming and going at her house (living there, which affects her monthly budget) and she feels she is due the difference because her monthly expenses have increased. Yes we will fight these points at the expense of more lawyer bills, but it all comes down to how the judge feels. WHAT?????? She is playing her disabled card very well and the judge is buying into it. Why would she ever re-marry? She gets paid more than I make in a year. I am not asking for us not to pay at all, I just don’t think it should be increased. Feeling frustrated…..

  9. Noii Asberry Says:

    I am currently researching Wisconsin’s Marital Property Act (WMPA), and I am really shocked that Wisconsin MPA’s adoption of the Uniform Marital Property Act (UMPA) has essentially turned marriage into a secularized business model, as described in Cantrell’s comments. A business model that relegates the sanctity of marriage–heterosexual marriage-to be clear–into a “…community property system…”

    It appears, from both Acts, that it is impossible to get a legal divorce from a marriage in Wisconsin because after the divorce, the Wisconsin Marital Property Act automatically remands the individuals to be married to their divorce based upon the UMPA language (adopted by Wisconsin) that “”[D]uring [the,definite article my inclusion]] marriage each spouse should have a legally defined and substanstial right in the earnings of the other spouse and in the real and personal property acqyired as a result of such earnings, as well as in the management of such earnings and property.” Moreover, and this is where my jaw almost hit the IPAD, “This right should outlive the marriage and retain legal recognition despite termination of the marriage by death, annulment, or divorce.” I thought, is it even possible to get a divorce when such stipulated language requires you to become married to a divorce after your divorce.

    It is my understanding that after married couples divorce, the state does not have a “right” to force individuals to be married with such legal language to “…outlive the marriage…” If the marriage is dissolved by legal divorce, the marriage should end for both individuals, and I really don’t believe ANY spouse should expect “…the same financial securities…” as when the marriage was in effect after the marriage has ENDED in divorce. This is the point, when judges award maintenance payments to individuals, mostly women, whom the judge decides should receive maintenance based on Wisconsin’s Marital Property Act, then the laws of marital property strait-jackets marriage into a maintenance based dependency of protectionism for women after divorce. The laws essentially guaranteeing women legal rights in becoming dependent on protectionism and really never experiencing real divorce due because the language of both Acts are structured to “…outlive the marriage…”

    What is left after the dissolution of the marriage? According to both Acts, an overreaching authority to continuously meddle into the individual lives of men and women and keep them married to a divorce after the marriage is over.

    My comments and perpsectives come from reading the Uniform Marital Property Act
    (UMPA), the Wisconsin Marital Property Act (WMPA), and the Marquette Law Review, Vol. 79, Spring 1996. And of course, selected divorce cases from the Wisconsin Bar Association’s “Caselaw Express.”

  10. Noii Asberry Says:

    Is it true that some women become so maintenance dependent due to the state?

  11. Gerry Becker Says:

    This is even when the court commissioner sits behind the bench, reading over the balance sheet. The commissioner says “Don’t see how you can possibly making ends meet with your income, but I am awarding her over half of your income. You still have to pay all the bills, maintain the vehicles and the house.” This happens all the time. When will the laws change?

  12. James Longhway Says:

    The problem I have encountered as concerns judges having all the say in what amount of maintenance is to be paid is that judges rarely see cases with assets in the seven figures nor do they understand how small business works, and in fact the courts have made it profitable for the spouse to file for divorce. She has her freedom, gets half of the assets, then receives a monthly check, sits around, and enjoys life while the ex-husband works trying to pay his bills and the maintenance. In my case the judge threw out my prenuptial agreement allowing my to-be ex-wife (she filed for the divorce) to take half of assets that she had nothing to do with the accumulation of. She received seven figures in the settlement, the majority in cash, which included all of my retirement fund and then the judge sentenced me to five years of maintenance payments of 7,500 a month. I am 61 years old with no retirement. I am self employed and can only hope to be back on my feet if I continue to work to at least 70 and likely 75. They call this justice. Things need to change.

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