Maintenance Guidelines

By Attorney Gregg Herman
February 24, 2015

Due to federal law, child support standards are mandatory and all 50 states have adopted some version.  Although issues occasionally arise regarding their application in certain cases, by and large, they are successful in resolving child support by simply plugging numbers into a formula.  Could similar standards work for spousal support?
Effective January 1, 2015, maintenance guidelines are in operation in Illinois.  According to an article in the Illinois Lawyer, while they are not mandatory guidelines, they are, like child support, presumptive.  Therefore, if a court does not use them, the court must explain the reasons for a deviation.

The length of maintenance under the guidelines, depend, not surprisingly, on the length of the marriage.  According to the article, “for a marriage that lasted five years, the maintenance award would continue for 20 percent of that span, or one year. On the other end of the continuum, maintenance could be permanent or last the length of the marriage for a couple that has been married 20 years or more.”

The amount of maintenance is dependent, of course, on the income of the parties.  According the article “a maintenance award should equal 30 percent of the payor’s gross income minus 20 percent of the payee’s gross income, not to exceed 40 percent of the parties combined gross income when added to the payee’s gross.”

Are maintenance guidelines good ideas?  In my opinion, they are OK if they allow for judicial discretion – in other words, if they are guidelines instead of standards.  Guidelines are advisory – standards are (more or less) mandatory.  The Illinois law seems to be more standards than guidelines.

The reason for standards is to even out differences between individual judges.  There is no reason an individual should pay more or less maintenance – or receive more or less maintenance – because they drew the short straw (or long straw) due to their judicial assignment.

Then again, circumstances in individual cases can be so variant that handcuffing judicial discretion can result in a lot of round pegs being forced into square holes.  In one simple example, while a 20 year marriage sounds like a long one, it makes a significant difference if the parties were 18 years old when they got married as opposed to 38 years old.  In the former case, the support recipient has a long time to develop job skills to become self supporting.  Not so much in the former case.

Will Wisconsin join a growing list of states to adopt such guidelines?   The last session of the legislature considered several versions, but adopted none of them.  Stay tuned for updates.

[Editor’s note:  This topic will be the subject of my column, which will be moving from the Wisconsin Law Journal to the WisBar InsideTrack, a publication of the Wisconsin Bar Association.  This will allow my column to be read by all members of the Wisconsin State Bar, rather than just the subscribers to the WLJ.   I’ve very much enjoyed my long term (over 15 years) association with the WLJ, but with the resignation of my long time editor, Jane Salem, I felt it’s time to move on.]

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.