WI Stat § 767.56 (2021)
2021 Wisconsin Statutes & Annotations|Chapter 767 - Actions affecting the family.|767.56 - Maintenance.

767.56  Maintenance. (1c) Factors to consider for granting. Upon a judgment of annulment, divorce, or legal separation, or in rendering a judgment in an action under s. 767.001 (1) (g) or (j), the court may grant an order requiring maintenance payments to either party for a limited or indefinite length of time, subject to sub. (2c), after considering all of the following:(a) The length of the marriage.(b) The age and physical and emotional health of the parties.(c) The division of property made under s. 767.61.(d) The educational level of each party at the time of marriage and at the time the action is commenced.(e) The earning capacity of the party seeking maintenance, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children and the time and expense necessary to acquire sufficient education or training to enable the party to find appropriate employment.(f) The feasibility that the party seeking maintenance can become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage, and, if so, the length of time necessary to achieve this goal.(g) The tax consequences to each party.(h) Any mutual agreement made by the parties before or during the marriage, according to the terms of which one party has made financial or service contributions to the other with the expectation of reciprocation or other compensation in the future, if the repayment has not been made, or any mutual agreement made by the parties before or during the marriage concerning any arrangement for the financial support of the parties.(i) The contribution by one party to the education, training or increased earning power of the other.(j) Such other factors as the court may in each individual case determine to be relevant. (2c)  Terminates at death of payee or payer. Unless already terminated for another reason, maintenance granted under this section terminates upon the death of the payee or the payer, whichever occurs first.History:  1971 c. 220; 1973 c. 12 s. 37; 1977 c. 105; 1979 c. 32 ss. 50, 92 (4); 1979 c. 196; Stats. 1979 s. 767.26; 2005 a. 443 s. 110; Stats. 2005 s. 767.56; 2013 a. 209.While arrearages under a temporary order for alimony and attorney fees and costs that the husband is required to pay do not constitute part of a wife's division of the estate, they are a charge against the entire estate. Tesch v. Tesch, 63 Wis. 2d 320, 217 N.W.2d 647 (1974).An obligation to support children is a factor in determining the amount of maintenance payments. Besaw v. Besaw, 89 Wis. 2d 509, 279 N.W.2d 192 (1979).The trial court abused its discretion by denying a mother's choice to remain at home to care for small children. Hartung v. Hartung, 102 Wis. 2d 58, 306 N.W.2d 16 (1981).The trial court abused its discretion by terminating maintenance without sufficiently addressing the factors under this section. Vander Perren v. Vander Perren, 105 Wis. 2d 219, 313 N.W.2d 813 (1982).Compensation for a person who supports a spouse while the spouse is in school can be achieved through both property division and maintenance payments. Lundberg v. Lundberg, 107 Wis. 2d 1, 318 N.W.2d 918 (1982).The trial court may begin its maintenance evaluation with the proposition that the dependent partner may be entitled to 50 percent of the total earnings of both parties. Bahr v. Bahr, 107 Wis. 2d 72, 318 N.W.2d 391 (1982).The trial court may not consider marital misconduct as a relevant factor in granting maintenance payments. Dixon v. Dixon, 107 Wis. 2d 492, 319 N.W.2d 846 (1982).It was improper to discontinue maintenance payments to a former wife solely upon the ground of her cohabitation with another man. Van Gorder v. Van Gorder, 110 Wis. 2d 188, 327 N.W.2d 674 (1983).Three formulas were approved for calculating maintenance or property division awards in cases in which one spouse has contributed to the other's pursuit of an advanced degree. Haugan v. Haugan, 117 Wis. 2d 200, 343 N.W.2d 796 (1984).An alcoholic spouse's refusal of treatment is relevant to the trial court's determination regarding a request for permanent maintenance. DeLaMatter v. DeLaMatter, 151 Wis. 2d 576, 445 N.W.2d 676 (Ct. App. 1989).Military disability payments may be considered in assessing ability to pay maintenance. Weberg v. Weberg, 158 Wis. 2d 540, 463 N.W.2d 382 (Ct. App. 1990).The trial court's use of a computer program to analyze financial evidence was not error. Bisone v. Bisone, 165 Wis. 2d 114, 477 N.W.2d 59 (Ct. App. 1991).An award may be based on a percentage of the payer's income in “unusual circumstances." Unpredictable future income warrants a percentage award. Hefty v. Hefty, 172 Wis. 2d 124, 493 N.W.2d 33 (1992).Maintenance furthers two objectives: 1) to support the recipient spouse in accordance with the needs and earning capacities of the parties; and 2) to ensure a fair and equitable financial agreement between the parties. In the interest of fairness, maintenance may exceed the recipient's budget. Hefty v. Hefty, 172 Wis. 2d 124, 493 N.W.2d 33 (1992).Maintenance is measured by the parties' lifestyle immediately before the divorce and that they could anticipate enjoying if they were to stay married. The award may take into account income increases the parties could reasonably anticipate. Hefty v. Hefty, 172 Wis. 2d 124, 493 N.W.2d 33 (1992).A maintenance award must account for the recipient's earning capacity and ability to be self-supporting at a level comparable to that during marriage. It is unfair to require one spouse to continue income production levels to maintain the standard of living of the other who chooses a decrease in production. Forester v. Forester, 174 Wis. 2d 78, 497 N.W.2d 78 (Ct. App. 1993).Consideration of one spouse's solicitation to have the other murdered in denying maintenance did not violate the statutory scheme and was not an improper consideration of “marital misconduct." Brabec v. Brabec, 181 Wis. 2d 270, 510 N.W.2d 762 (1993).A maintenance award based on equalization of income is not “self-evidently fair” and does not meet the statutory objectives of support and fairness. Olson v. Olson, 186 Wis. 2d 287, 520 N.W.2d 284 (Ct. App. 1994).An otherwise short-term marriage should not be considered a long-term marriage because there are children. Luciani v. Montemurro-Luciani, 191 Wis. 2d 67, 528 N.W.2d 477 (Ct. App. 1995).One spouse's contribution of child-rearing services and family support while the other spouse completed an education program was not sufficient grounds for awarding compensatory maintenance. Luciani v. Montemurro-Luciani, 191 Wis. 2d 67, 528 N.W.2d 477 (Ct. App. 1995).Leaving maintenance open due to potential future health problems of one spouse without expert testimony was proper, but failure to limit the order accordingly was improper. Grace v. Grace, 195 Wis. 2d 153, 536 N.W.2d 109 (Ct. App. 1995), 94-2653.Post-divorce increases in a pension fund valued in a divorce should be treated as an income stream available for maintenance. Olski v. Olski, 197 Wis. 2d 237, 540 N.W.2d 412 (1995), 93-3332.A court may consider earning capacity rather than actual earnings in determining child support and maintenance if it finds a spouse's job choice voluntary and unreasonable. Sellers v. Sellers, 201 Wis. 2d 578, 549 N.W.2d 481 (Ct. App. 1996), 95-2730.When parties have been married to each other more than once, a trial court can look at the total years of marriage when determining maintenance. The trial court is not bound by the terms of maintenance in the first divorce and may look to current conditions in setting maintenance. Wolski v. Wolski, 210 Wis. 2d 183, 565 N.W.2d 196 (Ct. App. 1997), 96-0136.A stipulation incorporated into a divorce judgment is in the nature of a contract. That a stipulation appears imprudent is not grounds for construction of an unambiguous agreement. Rosplock v. Rosplock, 217 Wis. 2d 22, 577 N.W.2d 32 (Ct. App. 1998), 96-3522.The purpose of maintenance is, at least in part, to put the recipient in a solid financial position that allows the recipient to become self-supporting by the end of the maintenance period. That the recipient becomes employed and makes productive investments of property division proceeds and maintenance payments is not a substantial change in circumstances but an expected result of receiving maintenance. Rosplock v. Rosplock, 217 Wis. 2d 22, 577 N.W.2d 32 (Ct. App. 1998), 96-3522.The trial court's exclusion of pension payments when considering income available to a maintenance recipient was correct when the pension had been awarded to the recipient as part of the property division and had no value outside of the payments made from it. Seidlitz v. Seidlitz, 217 Wis. 2d 82, 578 N.W.2d 638 (Ct. App. 1998), 97-0824.When a reviewing court finds that a trial court erroneously exercised its discretion in awarding maintenance, the case should be remanded for the trial court to properly exercise its discretion. It was an abuse of discretion for a trial court to assume that a spouse is legally entitled to maintenance. King v. King, 224 Wis. 2d 235, 590 N.W.2d 480 (1999), 97-0994.Equal income division is a reasonable starting point in determining maintenance, but the goal is the standard of living enjoyed during the marriage, not 50 percent of the total predivorce earnings. Maintenance may surpass 50 percent of the couple's predivorce income, but the payee is not entitled to live a richer lifestyle than that enjoyed during the marriage. Johnson v. Johnson, 225 Wis. 2d 513, 593 N.W.2d 827 (Ct. App. 1999), 98-2141.Maintenance is not intended to provide a permanent annuity. Generally, limited-term maintenance provides funds for training intended to enable the recipient to be self-supporting by the end of the maintenance period, and may also be used to limit the responsibility of the payer to a certain time and to avoid future litigation. Absent a substantial change of circumstances, the parties may rightfully expect no change. The law of change of circumstances should not require a paying spouse to finance unwise financial decisions of the recipient. Murray v. Murray, 231 Wis. 2d 71, 604 N.W.2d 912 (Ct. App. 1999), 99-1369.Under sub. (9), the contribution by one party to the other's education is not limited to contributions that arose only during the marital period. The court may freely consider the total contributions. Meyer v. Meyer, 2000 WI 132, 239 Wis. 2d 731, 620 N.W.2d 382, 99-0178.It was not error for the trial court to consider under sub. (10) evidence of the parties having lived “separate lives" for much of their marriage. By not equalizing their incomes, the court in effect implemented what the parties had already agreed to in practice. Schmitt v. Schmitt, 2001 WI App 78, 242 Wis. 2d 565, 624 N.W.2d 14, 00-0695.When a pension is divided by a qualified domestic relations order, and no value is assigned to either spouse's interest to be offset by other property awarded in the property division, a court is not prohibited by double-counting rules from considering pension distributions when determining maintenance. Wettstaedt v. Wettstaedt, 2001 WI App 94, 242 Wis. 2d 709, 625 N.W.2d 900, 00-3061.A court's authority to order maintenance includes authority to impose obligations on the payee to ensure compliance with the payment order if those obligations are reasonably necessary to effect compliance with the payment order. Finley v. Finley, 2002 WI App 144, 256 Wis. 2d 508, 648 N.W.2d 536, 01-1705.Sections 767.25 (6) and 767.261 [now ss. 767.511 (6) and 767.531] regarding a fixed amount of interest on child support do not limit the trial court's authority to consider imposing interest on unpaid maintenance. A trial court has discretionary authority under s. 767.01 (1) to impose interest on maintenance arrearages. If the court decides to impose interest, it is under the trial court's discretion to determine the amount to impose. Cashin v. Cashin, 2004 WI App 92, 273 Wis. 2d 754, 681 N.W.2d 255, 03-1010.The general rule is that maintenance decisions are based on the parties' financial circumstances at the time the determination is made. A financial benefit flowing from one spouse's cohabitation with a 3rd party at the time of divorce is an appropriate consideration in setting maintenance. Woodard v. Woodard, 2005 WI App 65, 281 Wis. 2d 217, 696 N.W.2d 221, 03-3356.A factual finding that one spouse's cohabitation relationship with a 3rd party was likely to end in the near future, supported by evidence in the record, might be an appropriate basis for disregarding the financial benefit from the relationship if the expected duration was so short that the benefit to the cohabiting spouse would be insignificant. A court's speculation that because a relationship was new and non-marital and could terminate at any time and that the boyfriend had no legal obligation of support was insufficient to support a finding that the relationship was likely to end in the near future. Woodard v. Woodard, 2005 WI App 65, 281 Wis. 2d 217, 696 N.W.2d 221, 03-3356.The absence of a formal finding of a substantial change in circumstances is sufficient to establish an erroneous exercise of discretion. Hacker v. Hacker, 2005 WI App 211, 287 Wis. 2d 180, 704 N.W.2d 371, 05-0223.Alcoholism is not equated with the kind of career choice on which the opinion in Forester turns, but is a disease that can limit or destroy an individual's earning capacity. An alcoholic spouse's refusal to obtain recommended treatment may be a relevant factor in a maintenance decision, but unsuccessful treatment is not the same as refusing treatment. Even if the court determines that a history of failed treatment is a relevant factor, the court's award must still reflect a proper concern for both objectives of maintenance — fairness and maintenance. Hacker v. Hacker, 2005 WI App 211, 287 Wis. 2d 180, 704 N.W.2d 371, 05-0223.The court did not err in awarding maintenance out of the proceeds of a covenant not to compete that arose from the sale of shares determined to be a gift, and not subject to property division under s. 767.61 (2). The payments were in exchange for a service to be performed; refraining from doing business in a way that would be harmful to the purchasers. Grumbeck v. Grumbeck, 2006 WI App 215, 296 Wis. 2d 611, 723 N.W. 2d 778, 05-2512.In setting maintenance, the trial court should have included in the calculation, income from the investments in which a spouse has a substantial ownership interest. That the entities are not producing income at the time of the divorce does not mean they should not be considered. Wright v. Wright, 2008 WI App 21, 307 Wis. 2d 156, 747 N.W.2d 690, 06-2111.Parties with marital property agreements are not exempt from maintenance awards. Unless the agreement contains a waiver of maintenance rights as described in sub. (8), a court may conclude that a maintenance award is appropriate. Steinmann v. Steinmann, 2008 WI 43, 309 Wis. 2d 29, 749 N.W.2d 145, 05-1588.Sub. (6) contemplates maintenance being awarded to help a former spouse maintain an opulent standard of living reasonably comparable to that enjoyed during the marriage. There is nothing requiring that such spouses first have contributed to the household or child rearing to a certain degree. Nor does the statute condition a court's order maintaining that standard of living upon it being the result of both incomes when one party received personal benefits from the use of corporate property. Steinmann v. Steinmann, 2008 WI 43, 309 Wis. 2d 29, 749 N.W.2d 145, 05-1588.“Fairness" has a special meaning under the law of maintenance. A reasonable maintenance award is not measured by the average annual earnings over the duration of a long marriage but by the lifestyle that the parties enjoyed in the years immediately before the divorce and could anticipate enjoying if they were to stay married. When a recipient spouse can reasonably reach that lifestyle level by his or her own efforts following the expiration of limited-term maintenance, putting a time cap on the payment of maintenance may be appropriate. The payment of maintenance is not to be viewed as a permanent annuity. Heppner v. Heppner, 2009 WI App 90, 319 Wis. 2d 237, 768 N.W.2d 261, 08-2020.Despite the trial court's recognition of the stay-at-home wife's expectations of what her lifestyle would have been after her husband retired, the trial court obliterated those expectations because it seemed to assume that it should cut off maintenance once the husband retired, as retirement would cut off his sources of income. By ending maintenance, the trial court ignored the applicable principles of fairness and erroneously exercised its discretion. If the former wife was to be able to enjoy the life she would have enjoyed if the parties had not divorced, she was entitled to maintenance even though her former husband retired. Heppner v. Heppner, 2009 WI App 90, 319 Wis. 2d 237, 768 N.W.2d 261, 08-2020.Income received from the exercise of stock options that would be exercised after the divorce should be included in the income pool taken into consideration for the payment of maintenance. Heppner v. Heppner, 2009 WI App 90, 319 Wis. 2d 237, 768 N.W.2d 261, 08-2020.A maintenance award in a marriage of medium duration that exceeds the length of the marriage is within the trial court's discretion. When deciding whether to limit maintenance, and for how long, the trial court must consider: 1) the ability of the recipient to become self-supporting by the end of the term at a standard of living reasonably comparable to that enjoyed before divorce; 2) the ability of the payor to continue support for an indefinite time; and 3) the need for the court to continue its jurisdiction concerning maintenance. Ladwig v. Ladwig, 2010 WI App 78, 325 Wis. 2d 497, 785 N.W.2d 664, 09-1202.When valuing a business interest that is part of the marital estate for purposes of property division, a circuit court shall include the entire value of the salable professional goodwill attendant to the business interest. The circuit court did not double count the value of professional goodwill when it included the goodwill in the divisible marital estate, and then based a maintenance award on the professional spouse's expected future earnings. As with income from an income earning asset, income from a professional practice is separate from the value of the practice as it exists at the time of the property division and is properly considered in determining maintenance. McReath v. McReath, 2011 WI 66, 335 Wis. 2d 643, 800 N.W.2d 399, 09-0639.Sub. (2) requires a court to consider the physical health of the parties and does not suggest that health problems that have been the subject of settlement proceeds may be ignored. There is no qualifier in s. 767.56 relieving parties of the requirement to support each other if one of the parties receives a monetary award for injuries received in an accident. Lemke v. Lemke, 2012 WI App 96, 343 Wis. 2d 748, 820 N.W.2d 470, 11-1974.The trial court's conclusion that a payee spouse had shirked employment, requiring the termination of her family support, ignored the requirement in sub. (5) that the court consider the parties' “earning capacity." Once the court accepted an opinion regarding the payee's earning capacity, the court was required to compare the payee's earning capacity with the payor's, given the payor's actual earnings and payee's imputed earnings, to determine whether they were able to enjoy the lifestyle they enjoyed during their marriage. Lemke v. Lemke, 2012 WI App 96, 343 Wis. 2d 748, 820 N.W.2d 470, 11-1974.Inasmuch as both parties were about 79 years old at the time of the hearing; had been divorced for 21 years; were both living solely on their investment income and social security benefits; and the payor had been paying maintenance for 10 years after retiring; the trial court properly exercised its discretion when it reduced maintenance to $0, finding that the payee had ample funds to support herself. Brin v. Brin, 2014 WI App 68, 354 Wis. 2d 510, 849 N.W.2d 900, 13-1739.The federal tax consequences of divorce. Meldman & Ryan. 57 MLR 229 (1974).No-Fault Divorce: Tax Consequences of Support, Maintenance and Property Settlement. Case. WBB Dec. 1977.See also notes to s. 767.59 for decisions regarding postjudgment modifications.