Spousal Maintenance an Ongoing Concern

By Attorney Gregg Herman
January 4, 2011

There’s an old joke about a husband not wanting to pay his wife any maintenance.  The judge, after hearing the evidence, finds she is entitled to support and says, “I’m going to give her $1,000 per month.”  The husband responds, “Damn nice of you, judge.  I’ll kick in a couple hundred bucks of my own.”

Few financial issues are more emotionally fraught than maintenance.  From the payor’s point of view, he (or, increasingly, she) works quite hard to earn his income.  He’s already upset about having to share it with the government, not to mention to pay for his health insurance.  Also sharing it with someone who – in his opinion – is not working for it, makes getting out of bed and going to work difficult to justify.

On the other hand, since most red-blooded Americans spend everything they earn (and frequently more), frequently the only “asset” to show for years of marriage is their ability to earn income.  To the recipient’s point of view, she (or, increasingly he) earned that income just as much as her husband did .  Maybe more.

While guidelines for child support have existed for many years – and arguably have worked pretty well for the most part – no such guidelines exist for maintenance.

While one judge may award 10 years of maintenance in a 10 year marriage with no children (affirmed on appeal in Steinmann v. Steinmann, another court might award only four years of maintenance in a marriage of nearly 34 years with children (reversed on appeal in Heppner v. Heppner)

As a result of the variances between trial courts, I suggested previously in this column that the Wisconsin Supreme Court accept review in Heppner, and in Wright v. Wright.

In Wright, the Wisconsin Court of Appeals found that the trial court did not properly exercise its discretion, despite a trial court’s decision of 121 pages, containing 1,062 findings of fact.   As I said at the time, in a decision of that length, there has be an exercise of discretion in there somewhere!

Despite my advice, the high court denied review in both cases.  Shows you the respect I get (assuming the justices read my column…).

Legislative Committee to Weigh In

In the absence of better directions for the courts, the Wisconsin Legislature has stepped into the vacuum.

For the past several months, a “Special Committee on Review of Spousal Maintenance Awards in Divorce Proceedings” has been meeting and considering maintenance guidelines.

The committee, chaired by Rep. Tony Staskunas, D-West Allis, is tasked with studying:

(a) [T]he purpose and goals of awarding maintenance;

(b) making application of the maintenance considerations given in s. 767.56, Stats., more uniform and predictable;

(c) whether the statutes should provide guidance to the courts relating to amount and duration of a maintenance award;

(d) whether cohabitation should be considered when revising maintenance orders under s. 767.59, Stats.; and

(e) whether marital fault should be considered when determining a maintenance award.”

While such guidelines may serve a worthwhile purpose, the makeup of the committee creates grave concerns.  While (fortunately) there are some judges with experience, there are no representatives from the Family Law Section of the State Bar of Wisconsin or from the Wisconsin Chapter of American Academy of Matrimonial Lawyers – two organizations that could lend impartial expertise to these issues.

Instead, the committee includes three maintenance payers and no maintenance recipients.

As an example of how that could play out, one committee member’s suggested legislation provides that the duration of a maintenance award would be determined as 1.5 years for every 10 years of marriage.  So, in a 30-year marriage, the recipient would be “awarded” four and one-half years of maintenance.  Gee, I wonder if the committee member who suggested that is one of the maintenance payors?  Of course, that proposal is better than the one that would eliminate maintenance entirely.

Since I’ve always advocated getting involved to make change, rather than just complaining about it, I’ve decided to write to our lawmakers and the committee members.  See next week’s column.  I need to ask this committee just a few questions.

This article originally appeared in the Wisconsin Law Journal.

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.