This article was originally written by attorney David Karp and published on wisbar.org (link).
When two people file for divorce, depending on differing levels of income, one spouse may be owed financial support from the other spouse with respect to child support, family support payments, or maintenance payments. Spousal maintenance payments, or alimony, refers to court-ordered financial compensation awarded to a spouse typically to provide support in cases where that spouse makes less income or no income at all. This is generally to ensure both spouses steer clear of any negative financial outcomes before or after marital separation or divorce.
Overdue or late payments are called arrears.
For example, if a spouse fails to pay monthly alimony, a debt starts to accumulate, where the amount owed is referred to as the payor’s arrears. But, the Wisconsin court system has little to no authority over giving credit or clearing these arrears for the paying party.
So what other workarounds are available for the person responsible for paying support who may want to reduce or cancel such arrears?
Short Answer: It depends.
There are no black and white rules to understand who a Wisconsin court will find eligible for monthly alimony payments or for forecasting how much those payments will be.
Short Answer: No.
This is for two main reasons.
There are two historical divorce court cases in Wisconsin where maintenance arrears accrued should have been waived.
When one spouse benefits or is “enriched” at the expense of another in situations that the law views as unfair.
Consider a father who wants to argue that a court denied his motion to recover half of the college expenses he had previously paid for his ex-partner’s adult daughters and claimed he was entitled reimbursement on the basis of unjust enrichment. Typically, if a spouse is unfairly enriched, the law imposes upon them to make restitution (restore funds) with the partner they’ve unfairly disadvantaged. This was the case of the Wisconsin Supreme Court case, Dahlke v. Dahlke, 258 Wis. 2d 764, 654 N.W. 2d 73 (Ct. App. 2002), where a spouse cannot argue in divorce court for equitable for unjust enrichment to be relieved.
So is one out of luck when it comes to receiving the right legal protection against having to pay alimony in full?
Let’s look at the same terms, but in a civil court setting.
When one spouse files a civil lawsuit against their former spouse with “unjust enrichment” as the argument.
It’s important to note, that even when arguing for unjust enrichment in civil court, that there’s still a remote possibility in winning that case. Here are the three requirements needed to make a case for unjust enrichment in a civil court setting as seen in Watts v. Watts, 37 Wis. 2d 506.:
Karp & Iancu would like to recommend to the Wisconsin court system that Wis. Stat. section 767.59(1r) be amended to include relief not just in child support or family support cases, but in maintenance payment cases as well.
But until that amendment becomes reality, you unfortunately, have one option:
You have the right to pursue an “unjust enrichment” argument outside of the context of a family case.
Proceed with caution though. While a motion for reducing or cancelling alimony arrears can be considered up for debate depending on how much time has passed since the divorce on the basis of Wis. Stat. section 806.07., it’s unlikely a trial court would consider opening up a divorce judgment where a couple has been divorced for a significant period of time.
If you need further consultation, connect with a member of our legal counsel.
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