that the financial difficulty is fairly visited upon both parties.
Sec. 767.56, Wis. Stats., permits the court, upon granting a judgment of divorce, to award maintenance. Generally speaking, maintenance is a payment from one spouse to the other intended to equalize the income after the divorce. The maintenance payment may be indefinite, or the court may order maintenance for a set period. In setting maintenance, the court is required by statute to take into account the length of the marriage, a party's ability to pay maintenance, the age and physical health of the parties, the division of property, the educational level of each party, the earning capacity of the party seeking maintenance, and several other factors including whether the party seeking maintenance contributed to the other's ability to earn income.
An individual discussion of how each of these factors is applied in a divorce case is beyond the scope of this article. However, here are some general rules of thumb. Maintenance is rarely awarded when the marriage is short-term; that is, less than seven years. The earning capacity of each spouse is also a very important factor. An unscrupulous (and incompetent) lawyer might advise his client to remain unemployed during the time the divorce is pending. This is really poor advice, since the court takes into account earning capacity rather than actual earnings. Another factor that usually carries great sway with the court is the health of the parties. If the spouse seeking maintenance can demonstrate that he or she has significant health problems that may affect one's ability to work, a maintenance award is very likely. Finally, it is worth noting that a maintenance payment reduces the taxable income of the payor, and must be claimed as income by the recipient.
It is also important to understand what maintenance is not-- it is not alimony. Before Wisconsin adopted the "no fault" divorce law, a court was permitted to award alimony, which frequently was assessed as a penalty for causing the divorce. Formerly, before a court could grant a judgment of divorce, the party seeking divorce was required to prove grounds, such as infidelity, mental cruelty, and the like. Under the modern law, though, in setting maintenance, the court is prohibited from taking into account the reason for the divorce. In many cases, it is very difficult for the higher earning spouse to understand why he or she would be required to pay maintenance to the former spouse, when that other is the party who caused the divorce. For example, it is not unheard of for a man with a significant income to be ordered to pay substantial maintenance to his ex-wife, even though it was the wife who found a new significant other.
There are reasons to terminate or modify a maintenance order. Perhaps the most common reason is where the party receiving maintenance remarries. However, the court may also modify or terminate maintenance where there has been a material change in financial circumstances for either party.
If you are a high-income person facing a divorce, maintenance will be an important issue for you. It is an isssue that you should not face without the assistance of a family law professional.
