Termination of Maintenance

By Attorney Gregg Herman
May 14, 2014

A court of appeals decision yesterday, recommended for publication (yes, it’s been a while – to be specific, the last published FL case was filed November 5, 2013), affirmed a trial court ruling holding open future maintenance.   The decision itself is rather innocuous as it does not address a frequent issue for which there is no law in Wisconsin.

In Brin v. Brin, the trial court held open future maintenance to Edith.  The court of appeals affirmed, holding that the trial court appropriately exercised its discretion based on the following facts:

It’s hard to argue that the the court appropriately exercised its discretion.  Which is what the CA found.

The larger issue is:  When (if ever) can a payer of support retire and stop paying maintenance?  Actually, that’s two separate questions.

There is no answer to either one in any case law or in the statutes.  Regarding the first question, my experience is that a payor can retire when s/he is at the age the judge (or court commissioner) hearing the case intends to retire.  So,  taking early retirement at, say, age 55, is probably not going to go too far if the judge hearing the matter is in his or her 60s.

Still, absent any legal authority, there seems to be a general acceptance of retirement at least at age 65.  But, that does not necessarily mean that maintenance should terminate.  If, after retirement, the payor’s income exceeds the payee’s, should maintenance continue, albeit at a reduced rate?

There is case law which says that maintenance is not supposed to be a “permanent annuity.” But there is no case law (or statute) which gives more definition.  If maintenance is reduced, but not terminated (which was the Family Court Commissioner’s order in Brin) then maintenance would most likely continue until one of the parties died, as that would probably be the next substantial change in circumstances.

Good lawyers try to negotiate around these issue through Section 71 payments, which define the amount and term of support.  That benefits both parties by avoiding future litigation and allowing them to make plans as they know what they will pay/receive.  But, Section 71 payments cannot be ordered by the court – both sides have to agree.

Absent such an agreement, the effect of retirement on support is a gray area in Wisconsin.  We will have to wait for a different CA case perhaps to give some guidance.  And, given the lack of published FL cases, that may be awhile.

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.