Useful Maintenance Concepts
Under Wisconsin Law, there are a number of factors (enumerated in Wis. Stats. § 767.56 and 767.61) to be considered by the Courts in deciding whether to award maintenance and/or in what amount. However, few if any of these factors are black and white and therefore the Courts must consider the totality of all the applicable factors—in combination with related decisions in past Appeals Court and Supreme Court cases—for guidance. Ultimately, it is fairness—the combination of all applicable factors—that counts, and it is seldom possible to simply rule-in or rule-out maintenance.
Some of the Factors Considered by Courts in deciding the Fairness of Maintenance Decisions:
Length of Marriage
Long-term marriages (a legal concept) increase the likelihood of a significant maintenance award. However, shorter term marriages, (a related legal concept) may also qualify for maintenance under the totality of circumstances.
Non-economic Contributions to the Marriage
Contributions to a marriage such as homemaking and child care services are to be considered by the Court in deciding the fairness of a maintenance award.
Standard of Living
There is a great deal of caselaw (and dispute) regarding the potential obligation to maintain the relative standard of living enjoyed by the parties after the divorce. Among other considerations, Wis. Stats. § 767.56(6) enumerates: "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."
The Age and Health of each Party
Both of these factors can be taken into account by the Court in deciding the fairness of a maintenance award.
The Earning Capacity of each Party
The Earning Capacity of each party, both past and present are often scrutinized during a divorce action in which maintenance is being requested. It is quite typical that any major imbalance between the parties will raise this issue during a divorce action.
The Division of Property
Maintenance and the equal Division of Property are interrelated (see Wis. Stats. § 767.56 and 767.61). Therefore, any inequities in the Division of Property should be taken into account by the Court in deciding the fairness of a maintenance award.
In total there are approximately 23 factors (although many overlap) that may be considered by a Wisconsin Court in deciding the fairness of a maintenance award. These include factors such as assets and debts brought into a marriage or incurred during the pendency of the divorce action; the education level and education expenses of the parties; and the tax consequences of the divorce, among others.
Realistically speaking, circumstances also play a role in outcomes. Different courts and different court officials inevitably interpret the various factors differently, so decisions at the lower court level do vary somewhat. If the parties can agree in advance, whether regarding maintenance or otherwise, there is a greater likelihood that these agreements may be accepted by the Court and incorporated in the final divorce decree.