Of all the numbers in a Wisconsin divorce, maintenance is the one nobody can predict for you on the phone. Child support has a percentage standard the court is required to apply. Property division starts from a statutory presumption of equal division. Maintenance has neither. It has ten factors, two objectives, and a circuit judge’s discretion — which is why two couples with nearly identical balance sheets can walk out of the Waukesha County Courthouse with entirely different orders, and why the preparation of the case matters more here than anywhere else in the file.
Here is how it actually works.
The statute gives factors, not a formula
Section 767.56 (1c) of the Wisconsin Statutes says that upon a judgment of annulment, divorce, or legal separation — or in a standalone action for maintenance payments, which § 767.001 (1) (g) recognizes as its own action affecting the family — the court may order maintenance payments to either party, for a limited or indefinite length of time, after considering all of the following:
- the length of the marriage;
- the age and physical and emotional health of the parties;
- the division of property made under § 767.61;
- the educational level of each party at the time of marriage and at the time the action is commenced;
- 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 enough education or training to find appropriate employment;
- 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, how long that will take;
- the tax consequences to each party;
- any mutual agreement made before or during the marriage under which one party made financial or service contributions to the other expecting reciprocation or compensation later, if that repayment has not been made — or any mutual agreement concerning financial support of the parties;
- the contribution by one party to the education, training, or increased earning power of the other; and
- such other factors as the court determines to be relevant in the individual case.
Notice what is absent. There is no table. There is no percentage of income, no month-per-year-of-marriage rule, no cap. Wisconsin has never adopted a maintenance guideline with the force of law, and any figure you find online presented as “the Wisconsin formula” is somebody’s negotiating heuristic, not a statute.
A citation caution. 2013 Wis. Act 209 restructured this section. The factors used to be numbered § 767.56 (1) through (10) and are now § 767.56 (1c) (a) through (j). Published opinions and a great deal of commentary still refer to “sub. (6)” or “sub. (9).” The factors are the same; the addresses changed.
Two objectives: support and fairness
The discretion the statute grants is not unbounded, because the case law has given maintenance a purpose. Maintenance furthers two objectives: to support the recipient spouse in accordance with the needs and earning capacities of the parties, and to ensure a fair and equitable financial arrangement between them. 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).
That second objective is the one clients underestimate. A spouse can arrive with a monthly expense sheet showing a modest need and still be awarded more, because the fairness objective looks at the marriage rather than at the budget.
The benchmark is lifestyle. Maintenance is measured by the parties’ standard of living immediately before the divorce and what they could anticipate enjoying had they stayed married, and an award may take into account income increases the parties could reasonably anticipate. Hefty, again. It is not measured by averaging earnings across a long marriage. Heppner v. Heppner, 2009 WI App 90, 319 Wis. 2d 237, 768 N.W.2d 261.
The 50 percent starting point, and its limits
A court may begin its maintenance evaluation from 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). That sentence is quoted constantly and understood badly, so three corrections are worth making.
First, an equal division of income is a reasonable starting point, but the goal is the standard of living enjoyed during the marriage, not 50 percent of predivorce earnings. An award may surpass half of the couple’s predivorce income — and the payee is still not entitled to live a richer lifestyle than the marriage provided. Johnson v. Johnson, 225 Wis. 2d 513, 593 N.W.2d 827 (Ct. App. 1999).
Second, a maintenance award based on equalization of income is not “self-evidently fair” and does not by itself satisfy the statutory objectives of support and fairness. Olson v. Olson, 186 Wis. 2d 287, 520 N.W.2d 284 (Ct. App. 1994). The court must do the analysis, not the arithmetic.
Third, nobody is entitled to maintenance as a matter of law. It is an erroneous exercise of discretion for a trial court to assume that a spouse is legally entitled to it. King v. King, 224 Wis. 2d 235, 590 N.W.2d 480 (1999).
Limited-term or indefinite: the duration question
The statute permits either. Which one you get turns mostly on the length of the marriage and on the feasibility factor — whether the recipient can become self-supporting at a comparable standard of living, and how long that would take.
Maintenance is not intended to provide a permanent annuity. Limited-term maintenance generally provides funds for training meant to make the recipient self-supporting by the end of the term, and it also serves to limit the payer’s responsibility to a defined period and to avoid future litigation. Absent a substantial change of circumstances, the parties may rightfully expect no change — and the law of changed circumstances should not require a paying spouse to finance the recipient’s unwise financial decisions. Murray v. Murray, 231 Wis. 2d 71, 604 N.W.2d 912 (Ct. App. 1999).
Where a recipient can reasonably reach the marital standard of living through their own efforts after a defined period, a time cap on maintenance may be appropriate. Heppner. But the reverse also holds: a court may not simply assume maintenance ends when the payer retires. In Heppner, cutting off a stay-at-home spouse’s maintenance at the payer’s retirement — obliterating the retirement lifestyle she would have shared had the marriage continued — was an erroneous exercise of discretion.
Two length-of-marriage rules worth knowing. An otherwise short-term marriage does not become a long-term marriage merely because there are children. Luciani v. Montemurro-Luciani, 191 Wis. 2d 67, 528 N.W.2d 477 (Ct. App. 1995). And where the parties have been married to each other more than once, the court may look at the total years of marriage, is not bound by the maintenance terms of the first divorce, and may set maintenance on current conditions. Wolski v. Wolski, 210 Wis. 2d 183, 565 N.W.2d 196 (Ct. App. 1997).
There is also a middle option: holding maintenance open at zero. Leaving maintenance open because of a spouse’s potential future health problems was proper even without expert testimony — though the court’s failure to limit the order accordingly was not. Grace v. Grace, 195 Wis. 2d 153, 536 N.W.2d 109 (Ct. App. 1995). Holding open preserves the court’s power to act later. Waiving does the opposite, permanently, and we return to that below.
What counts as income — and what counts as earning capacity
Maintenance fights are usually fights about the income numbers on both sides of the equation.
Earning capacity can replace actual earnings. A court may consider earning capacity rather than actual earnings in setting 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). That cuts both ways. An award must account for the recipient’s earning capacity and ability to become self-supporting at a comparable level; it is unfair to require one spouse to keep producing income at the marital level to sustain the lifestyle of the other, who has chosen to produce less. Forester v. Forester, 174 Wis. 2d 78, 496 N.W.2d 771 (Ct. App. 1993).
Assets that are not paying out can still count. In setting maintenance the court should include income from 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 may be ignored. Wright v. Wright, 2008 WI App 21, 307 Wis. 2d 156, 747 N.W.2d 690. Military disability payments may be considered in assessing ability to pay. Weberg v. Weberg, 158 Wis. 2d 540, 463 N.W.2d 382 (Ct. App. 1990).
Pensions and the double-counting problem
This is the most technically dangerous area in a maintenance case, and it is where good lawyering shows.
Post-divorce increases in a pension fund that was valued in the divorce should be treated as an income stream available for maintenance. Olski v. Olski, 197 Wis. 2d 237, 540 N.W.2d 412 (1995). But where a pension was awarded to the recipient as part of the property division and had no value outside the payments made from it, excluding those payments from the recipient’s income for maintenance purposes was correct. Seidlitz v. Seidlitz, 217 Wis. 2d 82, 578 N.W.2d 638 (Ct. App. 1998). And when a pension is divided by a qualified domestic relations order with no value assigned to either spouse’s interest to be offset against other property, the court is not barred by double-counting rules from considering the pension distributions in setting maintenance. Wettstaedt v. Wettstaedt, 2001 WI App 94, 242 Wis. 2d 709, 625 N.W.2d 900.
The through-line: whether an asset can be counted as income depends on exactly how it was treated in the property division. Which is why maintenance and property division have to be negotiated as one problem — a point the statutes make themselves, since § 767.56 (1c) (c) makes the property division a maintenance factor and § 767.61 (3) (i) makes the amount and duration of maintenance, and whether the property division is in lieu of it, a property-division factor. Each looks at the other. We cover the division side of that in our article on what a marital-property state actually means at divorce.
What the court will not consider
Marital misconduct. The court may not consider marital misconduct as a relevant factor in granting maintenance. Dixon v. Dixon, 107 Wis. 2d 492, 319 N.W.2d 846 (1982). The affair does not move the number. There is an outer boundary: considering 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 (Ct. App. 1993). Short of that, the misconduct argument is a distraction that costs money to make.
Cohabitation, standing alone. It is improper to discontinue maintenance solely because the recipient is living with someone. Van Gorder v. Van Gorder, 110 Wis. 2d 188, 327 N.W.2d 674 (1983). What is relevant is money: maintenance decisions rest on the parties’ financial circumstances at the time the determination is made, and a financial benefit flowing from a spouse’s cohabitation with a third 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. The distinction is between the relationship and the household economics it produces.
Health, with a caveat. An alcoholic spouse’s refusal of recommended treatment is relevant to a request for permanent maintenance. DeLaMatter v. DeLaMatter, 151 Wis. 2d 576, 445 N.W.2d 676 (Ct. App. 1989). But alcoholism is a disease that can limit or destroy earning capacity, not a voluntary career choice, and unsuccessful treatment is not the same as refusing treatment; even where a history of failed treatment is relevant, the award must still serve both objectives. Hacker v. Hacker, 2005 WI App 211, 287 Wis. 2d 180, 704 N.W.2d 371.
The degree-and-support cases
Where one spouse worked while the other earned a professional degree, compensation can be achieved through both property division and maintenance. Lundberg v. Lundberg, 107 Wis. 2d 1, 318 N.W.2d 918 (1982). Three formulas have been approved for calculating maintenance or property-division awards in that situation. Haugan v. Haugan, 117 Wis. 2d 200, 343 N.W.2d 796 (1984). The contribution-to-education factor is not limited to contributions made during the marital period; the court may freely consider total contributions. Meyer v. Meyer, 2000 WI 132, 239 Wis. 2d 731, 620 N.W.2d 382.
There is a limit. One spouse’s contribution of child-rearing services and general family support while the other completed an education program was not sufficient grounds for awarding compensatory maintenance. Luciani. The claim needs a real economic contribution to the degree, not merely a marriage that continued during it.
A related point for anyone with a prenuptial or postnuptial agreement: parties with marital property agreements are not exempt from maintenance awards. Unless the agreement contains a waiver of maintenance rights of the kind the statute describes, a court may still conclude that maintenance is appropriate. Steinmann v. Steinmann, 2008 WI 43, 309 Wis. 2d 29, 749 N.W.2d 145.
While the case is pending
Maintenance does not wait for the judgment. Under § 767.225 (1) (d), the court may enter a temporary order during the pendency of the action requiring either party to pay for the maintenance of the other — and maintenance under that paragraph may include the expenses and attorney fees incurred by the other party in bringing or responding to the action. For a spouse without independent access to funds, that provision is often the difference between litigating the case and conceding it. The court may also require either party to execute an assignment of income under § 767.225 (1) (f).
Taxes: the 2019 dividing line
Section 767.56 (1c) (g) makes tax consequences a mandatory factor, and the federal treatment of maintenance changed fundamentally in the 2017 federal tax act. For divorce or separation instruments executed after December 31, 2018, maintenance is no longer deductible by the payer and no longer included in the recipient’s taxable income. Orders under instruments executed before that date generally retain the prior treatment unless they are later modified in a way that expressly adopts the new rules.
This matters more than it sounds. The old deduction let a higher-bracket payer fund a larger gross payment at a lower net cost, and a great deal of negotiating folklore — and a great deal of older commentary still sitting on the internet — assumes it. It has not applied to a new Wisconsin divorce in years. Any settlement math you inherited from a friend’s 2015 divorce is wrong for that reason alone.
How maintenance ends — and the traps
Death. Unless already terminated for another reason, maintenance terminates upon the death of the payee or the payer, whichever occurs first. § 767.56 (2c). Life insurance to secure the obligation is a separate negotiated term, not an automatic one.
Remarriage. After a final judgment requiring maintenance, if the payee remarries, the court shall vacate the order on the payer’s application with notice, or on the payee’s own notice of remarriage. § 767.59 (3). That requirement is unconditional — a remarriage later annulled as unlawful still terminated maintenance. Falk v. Falk, 158 Wis. 2d 184, 462 N.W.2d 547 (Ct. App. 1990). The payee also carries an affirmative duty: under § 767.58 (1r) (c) every maintenance order must direct the payee to notify the court and the payer within 10 business days of remarriage, and those notice orders are enforceable as contempt under ch. 785. The same subsection requires both parties to report address changes, employer changes, and substantial income changes within 10 business days.
Parties can contract around even this. Where a stipulation required maintenance payments during the wife’s lifetime, the husband was estopped from seeking termination when she remarried. Rintelman v. Rintelman, 118 Wis. 2d 587, 348 N.W.2d 498 (1984).
Expiration — and the deadline nobody sees coming. A court may revise a judgment incorporating a stipulation for limited-term maintenance if the petition to revise is filed before the maintenance obligation expires. Fobes v. Fobes, 124 Wis. 2d 72, 368 N.W.2d 643 (1985). File late and there is nothing to revise: a petition filed 20 days after the recipient received the final scheduled payment was properly dismissed as untimely. Lippstreu v. Lippstreu, 125 Wis. 2d 415, 373 N.W.2d 53 (Ct. App. 1985). If limited-term maintenance is running out and circumstances have genuinely changed, the motion goes on the calendar before the last payment, not after.
Waiver is forever. Under § 767.59 (1c) (b), a court may not revise or modify a judgment or order that waives maintenance payments for either party — the same permanence the statute gives a final property division. And a divorce judgment provision waiving maintenance takes precedence over other provisions arguably reserving or awarding it. Tyson v. Tyson, 162 Wis. 2d 551, 469 N.W.2d 913 (Ct. App. 1991). The choice between waived, held open, and awarded at zero is not boilerplate. It is one of the few decisions in a divorce judgment that can never be undone, and it should never be made in a hallway on the morning of a hearing.
Changing an existing order
Maintenance that has been awarded, or held open, is revisable. Section 767.59 (1c) (a) 1. lets the court revise and alter a maintenance order as to the amount and payment. Section 767.59 (1k) provides that a substantial change in the cost of living for either party, or as measured by the federal Bureau of Labor Statistics, may support a revision — except that a change in the obligor’s cost of living is not by itself sufficient where payments are expressed as a percentage of income.
The court must actually make the finding. The absence of a formal finding of a substantial change in circumstances is itself sufficient to establish an erroneous exercise of discretion. Hacker. Terminating maintenance without sufficiently addressing the § 767.56 factors is likewise reversible. Vander Perren v. Vander Perren, 105 Wis. 2d 219, 313 N.W.2d 813 (1982).
What does and does not qualify:
- Lottery proceeds won after the divorce may constitute a change in financial circumstances justifying a change in maintenance. Gerrits v. Gerrits, 167 Wis. 2d 429, 482 N.W.2d 134 (Ct. App. 1992).
- On revision, investment income from property awarded in an equal property division may be included in income — and interest payments made to the payee spouse under that division may not be deducted. Hommel v. Hommel, 162 Wis. 2d 782, 471 N.W.2d 1 (1991).
- The recipient becoming employed and making productive investments of property-division proceeds and maintenance payments is not a substantial change in circumstances. It is the expected result of receiving maintenance. Rosplock v. Rosplock, 217 Wis. 2d 22, 577 N.W.2d 32 (Ct. App. 1998).
- Where the parties stipulated to permanent nonmodifiable maintenance as part of a comprehensive settlement of all property and maintenance issues, approved by the court and fair and lawful when made, a party is estopped from seeking revision on the ground that the court lacked power to enter the agreed order. Nichols v. Nichols, 162 Wis. 2d 96, 469 N.W.2d 619 (1991).
Timing governs the money. Under § 767.59 (1m) the court may not revise maintenance — or accrued maintenance arrears — for any period before the date notice of the action is given to the other party, except to correct previous calculation errors. Under § 767.59 (2w) a revision modifies the original order from the date the revising order takes effect, and the original amounts stop accruing then. A payer whose income collapses in February and who files in October has lost eight months permanently. File when the change happens.
One more note on stipulations: a stipulation incorporated into a divorce judgment is in the nature of a contract, and the fact that it turns out to have been imprudent is not grounds for construing an unambiguous agreement to mean something else. Rosplock. The words you sign are the words you get.
Collection and enforcement
Maintenance is collected like support. Under § 767.75 (1) (b) a “payment order” expressly includes maintenance under § 767.225 or § 767.56 and any revision of maintenance under § 767.59 — and under § 767.75 (1f) a payment order is an assignment of commissions, earnings, salaries, wages, pension benefits, worker’s compensation and unemployment benefits, installment lottery prizes, and other money due. The assignment is for a fixed sum regardless of whether the order is written as a percentage, and it may include an add-on toward arrears at a periodic rate not exceeding 50 percent of the amount due, so long as that does not push the paying party below the federal poverty line. Under § 767.75 (1m), the assignment continues after the current obligation ends while arrears remain outstanding.
Interest on unpaid maintenance is discretionary rather than fixed. The statutes setting a fixed amount of interest on child support do not limit a trial court’s authority to consider imposing interest on unpaid maintenance, and if the court decides to impose it, the amount is likewise within its discretion. Cashin v. Cashin, 2004 WI App 92, 273 Wis. 2d 754, 681 N.W.2d 255. And a court’s authority to order maintenance includes authority to impose obligations on the payee where 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.
A note on family support
Older Wisconsin judgments sometimes contain a single “family support” order combining child support and maintenance into one payment. That device is no longer available for new orders — § 767.531 now operates only as to orders entered under the prior statute, which the code refers to as s. 767.531, 2019 stats. Existing family support orders remain enforceable, and arrears equal to or greater than one month’s child support still carry simple interest at 1 percent per month. If your judgment uses that language, it is an older order and the modification analysis is not the same as for a current one.
What this means for your case
Because there is no formula, a Wisconsin maintenance case is won or lost on the record you build for the ten factors: what the marital standard of living actually was, what each party can actually earn, what the property division actually did with the income-producing assets, and how long any retraining plan actually takes. Those are documentary and often expert questions — tax returns, benefit statements, vocational evaluations, budgets tied to the years immediately before the separation — and they cannot be reconstructed after the judgment is entered.
Maintenance also does not sit alone. It interacts with the child support calculation, since the obligation to support children is itself a factor in determining maintenance, Besaw v. Besaw, 89 Wis. 2d 509, 279 N.W.2d 192 (1979), and with the property division under § 767.61. If you are working through the whole picture, see our articles on how child support is calculated and how a Wisconsin divorce actually proceeds.
Talk to a New Berlin family law attorney
Maintenance is the term of a divorce judgment most likely to be decided by how well the case was prepared and most likely to become permanent by accident — through a waiver signed without understanding that it can never be revisited, or a limited term that expires while a motion sits undrafted.
Carson Law Office handles family law matters — divorce, legal separation, maintenance, custody and placement, child support, paternity, and post-judgment modification — throughout New Berlin, Waukesha County, Milwaukee, West Allis, Wauwatosa, and the surrounding communities. Call (262) 860-8932 or contact us here to have the maintenance factors applied to your own facts before someone else applies them for you.
This article provides general information about Wisconsin law and is not legal advice. Reading it does not create an attorney-client relationship. Every case is different; for advice about your own situation, speak with a licensed Wisconsin attorney.