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by Attorney Gordon S. Johnson, Jr.

In addition to being ordered to pay child support, a former spouse can also be required to maintenance after a divorce. Maintenance, formerly called alimony, is the payment of money, usually on a monthly basis to help support the former spouse as the cliche goes in the "lifestyle to which they had become accustomed." Maintenance can be awarded either to the husband or the wife, but only if the parties have been married for a substantial period of time.

Unfortunately, there is probably nothing harder to predict in the outcome of a divorce than length and amount of maintenance which may be awarded. Each case is different and each trial judge looks at similar cases, a little differently. While typically the appellate courts would help to iron out the differences between judges, in practice, there is little agreement amongst appellate judges on what is appropriate. Thus, maintenance is the most unpredictable, and often the hardest fought economic issue.

Maintenance was essentially "invented" to protect housewives of long term marriages from financial hardship if they were get divorced, and few people would argue that it was appropriate in situation similar to if our fathers had divorced our mothers. But with the radical change in spousal roles and income earning potential, and the greater frequency of divorce, maintenance awards can be very controversial and create long term bitterness between the parties.

As enunciated by the Wisconsin Supreme Court maintenance has two purposes: to provide for the support of a former spouse and assure fairness in terms of economic resources after a divorce. The starting point for a maintenance calculation is to equalize the earning capacity of two parties. Thus, if one spouse was earning $100,000 and the other nothing, maintenance might be ordered in the amount of $50,000. And if this was a divorce for people who had been married for more than a generation, and had raised children, the non working spouse might receive such maintenance for life. But when both spouses work, and the marriage is 10 years or less, rarely does maintenance completely equalized the income and it may be for a relatively short duration.

The legislature has pronounced the following 10 factors for a court to consider in a maintenance award:

767.26 Maintenance payments. (1) The length of the marriage. (2) The age and physical and emotional health of the parties. (3) The division of property made under s. 767.255. (4) The educational level of each party at the time of marriage and at the time the action is commenced. (5) The earning capacity of the party seeking maintenance, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children and the time and expense necessary to acquire sufficient education or training to enable the party to find appropriate employment. (6) The feasibility that the party seeking maintenance can be-come self­supporting 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. (7) The tax consequences to each party. (8) Any mutual agreement made by the parties before or during the marriage, according to the terms of which one party has made financial or service contributions to the other with the expectation of reciprocation or other compensation in the future, where such repayment has not been made, or any mutual agreement made by the parties before or during the marriage concerning any arrangement for the financial support of the parties. (9) The contribution by one party to the education, training or increased earning power of the other. (10) Such other factors as the court may in each individual case determine to be relevant.

While 10 factors are laid out, the courts clearly begin by looking at two issues, the income of the parties and the length of the marriage. They then adjust the award after some, but often not substantial consideration of the other factors. In any given case, one factor may become very important, such as for example contribution to the educational costs of someone whose spouse put them through school.

The length of marriage issue is terribly important, both in terms of whether maintenance should be paid at all and also, as to the length of time that maintenance should be paid. Marriages are classified as short term, long term and then something in the middle. Short term marriages are often considered to be marriages for less than 5 years, but with this length varying from judge to judge. Long term marriages are often considered to be marriages for twenty years or more, but again, this is sometimes as short as 12-15 years, and sometimes, but sometimes marriages of more than twenty years are not considered to be long term

Typically, it is thought that little or no maintenance will be paid for a short term marriage, except in extraordinary situations. In contrast, it is typically thought that indefinite or permanent maintenance will be awarded in a long term marriage. It is the cases in the middle, and defining just where the middle is, that provides so much of the inconsistency. One could argue that the courts and the legislatures have intentionally made maintenance unpredictable, to ensure that the twin goals of support and fairness become the focus, and not some mechanical application of a computer generated economic calculation. If that is the goal, it has been achieved.

Maintenance, even so called permanent maintenance, is not permanent. This indefinite maintenance is paid only so long as both spouses live, and terminates on the remarriage of the spouse receiving the maintenance. It can also be terminated or modified if there is a substantial change of circumstances after the divorce, such as retirement, or changes in either parties resources or need for maintenance.

Unlike child support, maintenance is a tax deduction for the person paying the maintenance and increases the income of the person receiving maintenance.

Occasionally, guaranteed payments, called Section 71 payments (for sec. 71 of the Internal Revenue Code which allows for their deductibility) are agreed to in a settlement. This compromise payment is paid in lieu of maintenance and will typically be paid for a specified number of years, irrespective of whether the recipient spouse remarries. Sometimes "family support" is also agreed to as a compromise, which is a combination of child support and maintenance, but is deductible by the paying spouse and includable in income of the recipient spouse. Both family support nor Section 71 are used to make settlements more attractive to both parties, but can never be ordered by the court.

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