Many women now out earn their husbands or they are the “breadwinners” and their spouse stays home to take care of the children. This situation can cause problems in a divorce and women often feel that they should not have to pay their husbands maintenance or alimony simply based on gender.
Maintenance, or what used to be called alimony, is ordered by the Court based on certain factors in the Wisconsin Statutes. There is no definitive test or guidelines in Wisconsin for when and how much maintenance should be ordered. The decision to award maintenance to one party is a discretionary decision of the Court. In other words, the Court has a lot of leeway when deciding the issue of maintenance. The Court must consider a list of factors stated in the Wisconsin Statutes and any other factors that the Court deems relevant.
The Wisconsin statutes are “blind” as to gender. It does not matter whether you are the husband or the wife. If maintenance is deemed appropriate by the court, it will be awarded regardless of who has the higher income. Generally, if it is a long term marriage and you (the Wife) have a significantly higher income than your husband, the court will most likely order you to pay maintenance.
The court will look at factors such as earnings history and earning capacity. If your husband simply refuses to work or refuses to work at his full capacity, the court can order that a higher income be imputed to him for purposes of calculating maintenance. However, if the role reversal in your marriage was based upon a mutual decision or has a long-standing history in your marriage, then maintenance would most likely be ordered. In other words, the court will look at the reasons why there is an inequity in the income.
At the time of the divorce, both parties are expected to work and work to their full earning capacity. The only exception is if someone is unable to work due to health or other legitimate reasons. In those cases, the court will look to see what the party can do or what alternative sources of income may be available to them such as social security or disability payments. Ultimately, however, if maintenance is requested by your husband, the court will follow the statutes in awarding maintenance, regardless of gender.
To discuss maintenance in your divorce, contact our office to schedule a free initial consultation at 414-258-1644 or visit our website for more information.