Posted tagged ‘earning capacity in divorce in Wisconsin’

Maintenance Disputes in Wisconsin Divorce

March 25, 2012

Maintenance (or alimony) is one of the issues we most often disagree about in a divorce.  One of the main reasons for this is that there are no definitive guidelines in Wisconsin about how maintenance is determined.  If there are maintenance disputes in a Wisconsin divorce, how are they resolved?

Maintenance is spousal support which is set as a certain amount per month for a period of time which can range from months to years to indefinite.  Maintenance is taxable to the person who receives it and deductible to the party who pays.  Either the Husband or the Wife can be ordered to pay maintenance in Wisconsin.  And, fault is not a factor the court can consider when awarding maintenance.

In some cases, maintenance can be easy.  When there is a long term marriage and a disparity between the parties’ incomes, maintenance is presumed to be appropriate.  Generally, the longer the marriage, the longer the term of maintenance that is awarded.  The goal of maintenance is often to equalize the parties’ net incomes.  There are several financial calculators and spreadsheets that attorneys and judges use which calculates the net disposable income of a party (after taxes).  Since maintenance is taxable/deductible, we can determine through these programs exactly what is the appropriate amount of maintenance needed to accomplish the goal of equalizing incomes.

So, why do so many people fight over this issue then?  There are many reasons but one of the primary reasons is income.  What income is appropriate to use when calculating net disposable incomes and the amount of maintenance?  We often have situations where a party (generally the Wife) has not been employed for many years.  She may have been a stay-at-home mother or only worked part-time.  Or, sometimes we have a situation where someone lost his or her job and either cannot or will not obtain comparable employment.  Depending on the reason for the job loss and/or the reason for the continued unemployment, this also can create an issue.

The courts generally find that (a) someone must be employed full-time and (b) they must be employed at their highest capacity.  There are always exceptions to this, of course, but the circumstances would be unusual.  Since the term “highest capacity” is very subjective, this creates maintenance disputes.  If an individual is not currently employed at their highest capacity, the court can “impute” them income which it will then use to calculate support and maintenance.

In order to resolve those maintenance disputes, we have a variety of tools available to us as attorneys.  For example, we can research an individual’s earnings history through tax returns or social security earnings statements.  Looking back can provide the court with information as to the highest earnings that individual has had in the past.  If an individual’s income varies, sometimes the court will average his or her income over a period of time.

We can also obtain a vocational evaluation for an individual.  There are vocational experts who will interview a party, look at their earnings history, examine their background, education and experience and then arrive at an opinion as to what that person can or should be earning.  The court will then consider this information when making its determination as to what income a person should be imputed.

Once we calculate or determine income, disputes also arise in maintenance as to how much maintenance should be awarded.  For example, one issue is whether incomes should be equalized or how much disposable income should be allocated to either party.  This depends on a wide variety of factors and, therefore, creates many areas for disagreement.  Primarily, the court will look at available income, budgets/bills, standard of living, property/debt division and child placement/child support in determining how much maintenance to award in a divorce.

The other main area for maintenance disputes is how long maintenance should be awarded or the “term” of maintenance.  The general rule of thumb is half of the length of the marriage.  However, this is not always true and again depends on a wide variety of factors such as the length of the marriage, age, earning capacities of the parties, education and work history of the parties, health problems, standard of living, etc.

Since maintenance is a discretionary decision of the court and based on a wide variety of factors, there are many potential areas of dispute.  The attorneys at Nelson & Davis, LLC will attempt to resolve your maintenance issue in a way which is most favorable to you.  However, in the event that is not possible, you will benefit from our knowledge of the law and of how the judges typically rule in these types of case and from our experience in litigating these issues.


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