Lemke Decision and Semantics

By Attorney Gregg Herman
July 16, 2012

Last week, the Wisconsin Court of Appeals issued an opinion which is recommended for publication in Lemke v. Lemke.  The decision reverses a trial court who denied future maintenance to a woman with no earning capacity due to an automobile accident.  The parties had been married for 24 years and the wife had raised four children.  The trial court terminated maintenance after three years of family support.  I’ll deal with the substance of the decision in my column in the Wisconsin Law Journal. in the next week or so.

For now, however, I’m going to rant about imprecise word usage.  While lawyers are guilty of this as well as courts, we do not make the law.  Courts do.

In Lemke, the court refers to “permanent” maintenance at least three times in its decision.   The correct term, per Wisconsin Statutes, is “indefinite” maintenance.  While one dictionary definition of “permanent” includes “indefinite,” the common usage is the first definition, which is:

existing perpetually; everlasting, especially without significant change.” Of course, maintenance is anything but “existing perpetually.” 

It stops on the recipient’s remarriage by statute and can terminate upon a finding of an appropriate substantial change in circumstances.
In law, words are all we have to work with.  There is no science (other than social science, but that rant is for another day).  There is only semantics.  So all lawyers, but especially courts in a common law system, need to be careful of the words they choose.

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