What if I Married my Spouse Twice? How Does that Affect Maintenance in Wisconsin?

Maintenance, or spousal support, is most often ordered by the court from one spouse to another when one spouse was financially dependent on the other during the marriage.

Typically, maintenance is intended to be “rehabilitative” and used to help the financially dependent spouse work towards a place where he/she can support his/herself.

Factors that the court considers when determining the appropriate maintenance amount are the following:

  1. The length of the marriage.
  2. The age and physical and emotional health of the parties.
  3. The division of property made in the divorce.
  4.  The educational level of each party at the time of marriage and at the time the action is commenced.
  5. 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.
  6. 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.
  7. The tax consequences to each party.
  8. 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, where such 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.
  9. The contribution by one party to the education, training or increased earning power of the other.
  10.  Such other factors as the court may in each individual case determine to be relevant.

Length of the marriage is one of the main factors used in determining maintenance, so it prompts the question, what happens if you marry the same person more than once? This may seem like a unique circumstance, but in our line of work we see situations like this more often than you would think.

When parties have been married to each other more than once, the court can look at the total years of marriage when determining the maintenance amount granted. The court may look to current conditions in determining maintenance, as it is not legally bound by the terms of the first divorce.

Please note, if an ex who is receiving maintenance payments (“payee”) remarries another person who is not a former spouse, maintenance ends automatically under Wisconsin law if the person obligated to make payments: (1) has proof of remarriage, (2) requests that the court vacate the current maintenance order, and (3) sends a copy of the request to the payee.

If you have any questions regarding maintenance, please contact our office at 414-258-1644 to schedule a free initial office consultation or visit our website for more information.

How to Calculate Maintenance in Wisconsin?

In reviewing our site stats for our blog, one of the most common searches or topic is regarding maintenance and how to calculate maintenance in Wisconsin.  We have other blog posts which deal with the maintenance in general and the standards or law regarding maintenance in Wisconsin.  However, many people are looking for a specific answer about how much maintenance will be awarded in their case.

Unfortunately, that is not an easy question to answer.  There is no formula in Wisconsin for maintenance like there is for child support. Maintenance is a discretionary decision on the part of the court which means that the amount could greatly vary depending on the facts of your case, the judge, the amount of income of the parties, etc.  In fact, what income to use for the parties is probably the most common area of dispute in a maintenance case.

With that said, since so many people are looking for answers on this topic, I thought I would at least try to address it.  Besides income, the two other main considerations when calculating maintenance are the tax consequences and the percentage of net income allocated to the parties.  Maintenance is taxable to the payee and deductible to the payor.  When determining maintenance, we often try to equalize the parties’ net disposable incomes so they both have the same amount to live on, especially in a long term marriage.  In fact, in a long marriage, the presumption in the law is to equalization incomes.  Therefore, there are some spreadsheets and tax calculators that lawyers and judges have developed and most commonly use when trying to determine the appropriate amount of maintenance.

Some time ago, Judge J. Mac Davis from Waukesha County developed the first maintenance calculator in Wisconsin.  When conducting a google search on how to calculate maintenance in Wisconsin, one of the top search results leads you to a website hosted by Attorney Ernesto Romero.  On this website, he has links to various family law forms and to a maintenance calculator which we all refer to simply as “Mac Davis” (click for link).  This calculator is fairly simplistic and automatically calculates taxes on income and maintenance. He updates it each year using new tax rates, credits which might be in effect or other changes in tax laws although he has not updated it for 2013 and may not do so again. To run the calculations, you need to input tax status (individual, joint, head of household), the number of exemptions, each parties’ annual income and other requested relevant information.  Based upon these numbers, the program calculates the net monthly disposable income of each party.  By then inputting various maintenance amounts (annual), you can attempt to arrive at a maintenance amount which most closely reaches the percentage of monthly income allocation that is appropriate, whether it is 50/50 or not.

Since the first calculator was developed, others have followed.  The two most common other calculators are called Fin Plan and a newly revised and much more complicated Mac Davis format created by Garrick G. Zielinski CFP, CDFA, Divorce Financial Solutions, LLC (click here for download).  Each attorney and judge has their own preference.  Each calculator has their own strengths and weaknesses.  The original Mac Davis version is free of charge. Mr. Zielinski’s version is available for purchase.  Fin Plan ,which does also have other divorce planning functions, must also be purchased.

Mr. Zielinski’s calculator (called 2013 DFS TaxCalc) has just come out recently but more and more attorneys and judges are using this now.  It provides much more information, allows you to also calculate child support, takes into account more complicated income situations than the original Mac Davis (such as non-taxable income) and allows you to plug in a target percentage of income (i.e. 50/50) which then automatically calculates maintenance for you.  The original Mac Davis requires some hand calculations to convert monthly to annual amounts and a certain amount of guessing to get you to your target percentage of net income allocation.

WARNING: these calculators are not for amateurs!  You might use Mac Davis to give you a general idea of what you might expect for a maintenance order.  However, there are many aspects which must be taken into consideration when running maintenance calculations.  You will need the assistance of an experienced divorce attorney and, possibly, a financial planner to arrive at a maintenance amount that is in your best interests and considers all possible consequences, tax or otherwise.

To discuss your maintenance case in detail with one of our experienced divorce lawyers, please call us for a free initial office consultation at 414-258-1644.  You can also visit our website or look at our other blog posts regarding maintenance (see category link below) for more information.

Teri M Nelson

Do I Have to Pay My Husband Maintenance (Alimony) in Wisconsin?

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.

Maintenance (Alimony) in Wisconsin

Wisconsin Maintenance (Alimony) FAQ’s

WHO IS ENTITLED TO MAINTENANCE AND HOW DOES THE COURT DECIDE THIS ISSUE?

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. Some of those factors are:

(A) The length of the marriage;

(B) The age and the physical and emotional health of the parties;

(C) The division of property;

(D) The educational level of each party at the time of marriage and time of divorce;

(E) The earning capacity of each party;

(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 the length of time necessary to achieve that goal;

(G) The tax consequences to each party;

(H) The contribution by one party to the education, training or increased earning power of the other;

(I) An agreements between the parties where one party has made financial contributions to the other with the idea that the other will reciprocate in the future; and

(J) An ability to pay by the party from whom the maintenance is being sought.

The attorneys at Nelson, Krueger & Millenbach, LLC will be able to evaluate the facts of your case and advise you as to the likely result of a maintenance request.

MY SPOUSE AND I HAVE ONLY BEEN MARRIED A SHORT TIME, WILL I GET MAINTENANCE?  HOW LONG DO I HAVE TO BE MARRIED TO GET MAINTENANCE?

Unless there is a large disparity between the income levels of the parties or the party requesting maintenance has health problems, a maintenance award in a short term marriage would be unusual. The longer the term of the marriage, the more likely a maintenance award is.  Once a marriage exceeds 20 years, maintenance is almost a certainty in a case where there is a disparity in income.

IS THERE A SPECIFIC GUIDELINE WHEN DETERMINING MAINTENANCE?

There are no specific guidelines in Wisconsin when determining maintenance. However, when there is a fairly long term marriage where one party has the ability to pay and there is a disparity in incomes between the parties, the court would generally award maintenance. In that situation, the goal of the Court is usually to either:

(A) Equalize the net disposable incomes of the parties, or

(B) Meet the budget of the payee spouse, assuming its reasonable, in an effort to maintain a standard of living equal to or similar to what he/she enjoyed during the marriage.

In these cases, the Court generally considers what are the needs of the party seeking maintenance based on her/his budget and what is the ability to pay of the other party. When analyzing support issues, taxes and other budgetary factors also must be considered.

HOW LONG DOES MAINTENANCE LAST?

The Court usually sets a definite term for maintenance except in certain cases such as an extremely long term marriage, if the parties are older or where the person requesting maintenance has an inability to work. If maintenance is ordered for a set period of time and the party receiving maintenance feels it should continue, he or she can file a motion requesting an extension. This must be done, however, before the term of maintenance expires.

CAN MAINTENANCE BE MODIFIED OR TERMINATED?

If a party dies or the receiving party remarries, maintenance would terminate. If the person receiving maintenance begins living in a marriage-like relationship, maintenance can be modified or terminated. However, unless the parties agree otherwise, maintenance is always modifiable based on a substantial change in the circumstances of either party. This change in circumstances could be a change in income, a change in earning ability or a change in living circumstances. When one party believes that there has been a substantial change of circumstances in either parties situation, that party may petition the Court to change the amount or duration of maintenance.

WHAT ARE THE TAX CONSEQUENCES OF MAINTENANCE?

The party receiving maintenance must declare the support received as income on his or her income tax return and that maintenance will be taxable to him or her. The party paying maintenance will be able to deduct those payments on his or her income tax returns. The tax factors of maintenance must be considered when originally determining the award of maintenance at the time of divorce or any modification of maintenance.

You can also usually deduct any attorneys fees paid directly attributable to you receiving maintenance. Discuss this further with your Certified Public Accountant or income tax preparer.

WHAT IF MY EX-SPOUSE RETIRES? WILL MY MAINTENANCE END?

The retirement of a paying spouse may justify modifying or terminating maintenance in certain circumstances. For example, if a paying spouse retires and has no other source of income except his or her retirement benefits, of which you received one-half at the time of divorce, maintenance most likely would be terminated. However, this would also depend on why the party retired, the age he or she retired, if he or she has other sources of income, the ability to pay maintenance after retirement and your ability to provide for yourself.

WHAT IF MY SPOUSE SEEKS MAINTENANCE FROM ME AND I DONT FEEL THAT MY SPOUSE IS EARNING TO HIS OR HER FULL POTENTIAL?

In cases when one spouse does not believe that the other spouse is maximizing his or her earning potential, the Court can impute an income to that party. This income could be a prior income that the party is no longer earning for whatever reason. Or, in some cases, a vocational evaluator can be hired to provide expert testimony to establish what the non- or under-earning spouse could make if working full-time and/or to maximum ability. The expert will review the education, work and earning history and consider market factors and statistical information related to incomes to determine an income for the under-earning spouse. The Court will then impute or assume that the under-earning spouse is earning that amount when deciding the issue of maintenance.

WHAT IF MY SPOUSE IS SELF-EMPLOYED OR EARNS CASH? HOW CAN INCOME BE DETERMINED TO CALCULATE MAINTENANCE?

In cases when one spouse is self-employed or receives cash payments for income, financial records and documents can be obtained or subpoenaed to determine income. Similar to the response in #8, the Court can impute an income to that party based on financial records and/or testimony of financial experts, such as a Certified Public Accountant, based on a review of financial documents, such as tax returns, bank statements, investment accounts, etc.

The Court will consider the testimony of financial experts and evidence in the form of financial documents when determining what income is available for support from all sources.