What is “Maintenance”?

If you are considering or going through a divorce, you may have heard the term “maintenance”.   Maintenance is the term for payments made by one spouse to the other after a divorce.  Many still refer and recognize maintenance by the term, “alimony”.

For some, the term maintenance may cause stress and anxiety. However, it is important to note that maintenance today is rarely awarded.  A study of 476 final judgments of divorce in one Wisconsin county showed that only 11.3% of cases resulted in a family support or maintenance award for one spouse.[i] 

The purpose of maintenance has also changed in the last 50 years. Prior to 1977 in Wisconsin, divorces were only allowed if one party committed a fault that breached the marital agreement.  Maintenance, or alimony, was generally awarded due to the legal and customary duty for a husband to continue to financially support his wife, and due to economic insecurity often faced by women in a male-dominated workforce.

In 1977, Wisconsin passed the Divorce Reform Act which allows divorce even when neither party is at fault. This change, coupled with the increasing opportunities for women in the workforce,  has resulted in a change in the justification for maintenance. Current maintenance considerations tend to support the idea that maintenance is awarded for rehabilitative and reimbursement purposes.  Post-divorce maintenance payments tend to recognize specific contributions made to the marital unit at the potential cost of personal benefit, resulting in the idea that maintenance payments are based in an entitlement to a marital investment[ii], and are not, on their face, based in gender.

Take for example, if you relocate from Green Bay, Wisconsin to a small town two hours away so your spouse can take a better job. In doing so, you take a new job with lower pay, knowing the marital unit will ultimately benefit. If the marriage later breaks down, you have suffered an individual loss for the benefit of the family.

The situation described above specifically implicates three of the factors courts in Wisconsin must consider when determining maintenance awards[iii]: the earning capacity of the party seeking maintenance[iv]; 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; and the contribution by one party to the education, training, or increased earning power of the other. After considering the remaining factors,[v] a court may consider that with a judgment of divorce, you are entitled to benefit from your marital investment.

[i] Judith G. McCullen and Debra Oswald, Why do we Need a Lawyer?: An Empirical Study of Divorce Cases. March 2010. Marquette University Law School, March 2010, at 75.

[ii] Tessa R. Davis, A Human Capital Theory of Alimony and Tax, 25 Geo. Mason L. Rev. 352, 380 (2018).

[iii] Wis. Stat.§ 767.56(1c) (2021-22).

[iv] 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. Wis. Stat. §767.56 (1c) (e) (2021-22).

[v] The remaining factors are: the length of the marriage; the age and physical and emotional health of the parties; the division of property made under s. 767.61; the educational level of each party at the time of marriage and at the time the action is commenced; the tax consequences to each part; 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; such other factors as the court may in each individual case determine to be relevant. Wis. Stat. §767.56 (1c) (2021-22).