Spousal Maintenance

What some people know as “alimony” is now termed “maintenance” in Wisconsin family law. But while the terminology has changed, the concept remains the same. Marriage is considered a partnership, with both partners making contributions to the partnership in various ways. When the partnership ends, fairness requires that both partners share not only in the divisible property, but also in the continuing income stream generated by the partners. In the quintessential maintenance case, one spouse has stayed home to raise the children and care for the home while the other spouse has realized increased earnings

Wisconsin caselaw recognizes two distinct objectives of maintenance. The first is fairness, as exemplified by the maintenance case described above. When both parties have contributed to a marital partnership over the years, it would be unfair for the higher-income spouse to continue to live the lifestyle enjoyed by the parties during the marriage while the lower-income spouse’s lifestyle declines. The second objective is support; courts sometimes award maintenance to ensure that both parties’ basic support needs are met.

While these twin objectives drive the maintenance analysis, Wisconsin’s family law statutes provide guidelines for implementing the objectives. See Wisconsin Statutes § 767.56. That statute sets forth the factors that are relevant to the maintenance analysis: length of the marriage, health of the parties, earning capacity, etc. Under the “catch-all” factor, § 767.56(10), the court may consider other factors that may be relevant to the particular case. Any previous agreements spouses have made concerning maintenance are simply one factor in the maintenance analysis; this differs from the statutes’ treatment of agreements concerning property, which are presumptively binding.

Courts are free to award maintenance indefinitely or for a limited period of time. Unlike certain other remedies, such as decisions regarding child custody, child support, and division of property, maintenance can be awarded only in the context of a divorce.

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