Law Gone Wrong: Wisconsin’s Spousal Maintenance Statute

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.

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Say It Ain’t So

We like to think that child abusers and child killers are monsters who are easily identifiable and, even more importantly, different from the rest of us “normal” people.  A recent news story in the Milwaukee Journal-Sentinel reminds us that the reality is more complicated. 

The alleged crime is sadly familiar: a young man was arrested in connection with the death of his girlfriend’s two-year-old son, Karmari J. Curtis, whom the suspect was babysitting.  The boyfriend brought the toddler’s body to the emergency room and claimed that the child had drowned accidentally while in the bath.  Since the lifeless child was reportedly dry and completely dressed, medical personnel and the police doubted the story, and the medical examiner’s report on the cause of death is currently sealed pending charges.  At the time of the toddler’s death, the suspect, Corey Benson, was out on bail awaiting trial on charges of physical abuse of a child and child neglect.  The previous charges stem from an incident in October when Benson admitted to playing tackle football with the same child and doing elbow and leg drops to him afterwards.  The toddler suffered life-threatening injuries, including a lacerated liver, as the result of that incident.  Benson was under a court order to have no contact with the boy after the October charges.

Everything about this tragic incident is ghastly, but here I want to focus on one particularly chilling aspect of this situation: the suspect, Corey Benson, is a young man of great potential who seemed to have beaten the odds against him. 

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Not Invited Back

If you ventured into Barnes & Noble this holiday season, you may have been asked to buy a book to be donated to foster children.   The available options are displayed on shelves behind the cashiers: mostly an array of classic picture books for small children, with a smattering of selections for older grade-schoolers.  I think this comports with the image that pops into the average person’s head when the term “foster child” is uttered.  We imagine frightened, small children who have been rescued from violent or deprived homes and placed with earnest, supportive foster parents.  Of course, we know the reality is more complicated, and that there are plenty of older kids and teenagers in foster care, and that the skills and dedication of foster parents vary considerably.  A recent piece in the New York Times shines a spotlight on another aspect of the foster care system: the children who are in the system not because they were plucked away from their parents by Child Protective Services, but because their parents voluntarily surrendered them to foster care.

The article, one in a series of profiles of persons who benefit from the NYT Neediest Cases fund appeal, gives us a snapshot view of Lydia Monserrate, a 21-year-old who recently aged out of foster care. 

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