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.