{"id":13206,"date":"2011-04-10T21:49:28","date_gmt":"2011-04-11T02:49:28","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=13206"},"modified":"2019-05-28T12:05:57","modified_gmt":"2019-05-28T17:05:57","slug":"law-gone-wrong-wisconsins-spousal-maintenance-statute","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2011\/04\/law-gone-wrong-wisconsins-spousal-maintenance-statute\/","title":{"rendered":"Law Gone Wrong: Wisconsin’s Spousal Maintenance Statute"},"content":{"rendered":"

\"\"<\/a>This is the fourth post in an occasional series\u00a0entitled \u201cLaw Gone Wrong.\u201d\u00a0 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).\u00a0 Today\u2019s contribution is from Professor Judith G. \u00a0McMullen.<\/em><\/p>\n

The current Wisconsin statute governing spousal maintenance, \u00a7767.56, 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.\u00a0 I believe, however, that the breathtakingly broad discretion granted under the statute is a mistake.\u00a0\u00a0<\/p>\n

Spousal maintenance, also known as alimony, is the payment by one ex-spouse for the support of the other ex-spouse.\u00a0 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.\u00a0\u00a0Divorcing couples may bargain for and agree to different maintenance outcomes, and those agreements are generally incorporated into their divorce judgments and subsequently enforced.\u00a0 If the parties do not agree, however, \u00a7767.56 says that the court \u201cmay grant an order requiring maintenance payments to either party for a limited or indefinite length of time\u201d upon consideration of the factors listed in the statute.<\/p>\n

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.\u00a0\u00a0 The court is further directed to consider \u201cthe 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.\u201d\u00a0 Finally, the court must consider \u201c[s]uch other factors as the court may in each individual case determine to be relevant.\u201d\u00a0 In other words, a judge can consider virtually anything.<\/em><\/p>\n

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.\u00a0 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.\u00a0 Even so, I find the super-broad discretion of \u00a7 767.56 to be troubling.<\/p>\n

Here\u2019s the thing: \u00a0the many factors that a judge must consider are not assigned any priority.\u00a0 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?\u00a0 Is the fact that one party was the primary caretaker of the couple\u2019s children for 10 years more or less important than the fact that the other party has chronic health problems?\u00a0 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.\u00a0 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.\u00a0 This makes alimony outcomes entirely unpredictable.<\/p>\n

\u00a0Absolute 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.\u00a0 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\u2019s career.\u00a0 Statutes like \u00a7767.56 do not mandate an award of alimony to such a woman, and instead allow a potentially infinite number of \u201cother factors\u201d determined by the court to be \u201crelevant\u201d enough to result in the denial of maintenance.\u00a0 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.\u00a0 Indeed, her lawyer may well advise her to settle for the bird-in-the-hand of a property settlement.\u00a0 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.\u00a0 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.<\/p>\n

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.\u00a0 As it stands now, however, a petition for alimony is a roll of the dice.\u00a0 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.\u00a0<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

This is the fourth post in an occasional series\u00a0entitled \u201cLaw Gone Wrong.\u201d\u00a0 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).\u00a0 Today\u2019s contribution is from Professor Judith 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