One of the issues that creeps up when dealing with a maintenance issue (spousal support), is the question of how long should the term of maintenance be. Today’s blog will address the various scenarios for the length or term of maintenance.
1. HOLD OPEN.
I have discussed this issue in a blog from last year and that is whether maintenance should be terminated or “held open.” I am not going to address that issue here as much as explain what a “hold open” means, and whether it is appropriate to consider. A “hold open” means a person is reserving the right to go back into court after the divorce and based on a significant and substantial change in circumstances request an award of maintenance. It doesn’t mean or guarantee you are going to get it, but it simply means one has the right to do it. A hold open on maintenance may be appropriate where the marriage length is 10 years or longer, and under the circumstances at the time of the divorce, neither party is going to be required to pay maintenance to the other. It is also certainly appropriate in a long term marriage as well, where there may not be any differences in the parties’ earnings or earning capacity, but given how long the parties are married to one another, both of them should have the right to come back into court and ask for financial relief in the event there becomes a need based on a change of circumstances in the future.
2. LIMITED TERM.
This second consideration may be appropriate to consider in shorter term marriages or marriages of less than 20 years, where one party is going to be paying maintenance to the other, but the length of the marriage doesn’t warrant an indefinite support order. An example may be a marriage of 15 years, where there is a disparity in the earnings of the parties or one needs continued spousal support to complete their education or become retrained to ultimately secure a good job. Sometimes we go by the rule of 1/2 the length of the marriage. An example might be if you are married 15 years, the length or term of the support order would be 7.5. If the marriage is 8 years, the term of support would be 4. While this is not a law and you won’t find it in a law book or statute, many family lawyers and courts adhere to the “half of the length of the marriage” rule, when dealing with limited term maintenance orders.
Indefinite maintenance means exactly that; there is no cutoff point for the termination or cessation of maintenance payments. Maintenance payments would only terminate upon the recipient spouse’s remarriage, or death of either party, as required under the IRS tax rules to receive the tax deductibility of the payments upon the death of the payee-spouse. Maintenance continues until the matter is brought back into court and the court decides whether there should be modification or termination of the maintenance order. We usually see indefinite maintenance orders in long term marriages of more than 20 years. The reverse is also true and that is we rarely see indefinite maintenance orders where parties are married less than 20 years, except in the most unusual and exigent circumstances, such as one of the parties having a chronic medical problem that prevents them from working. We are also seeing a trend of cases from the Court of Appeals and Wisconsin Supreme court that where trial courts are ordering limited term maintenance on long term relationships, that they are being overturned or reversed on appeal. The higher courts are basically saying that on long term relationships, where there is a need for spousal support, those payments need to be indefinite in nature with no ending point, barring death of either party or recipient spouse’s remarriage, where it terminates by law.
If you have questions about maintenance, whether it is the law, the amount, or the duration, contact one of our experienced family lawyers today at Karp & Iancu, S.C. for a 100% confidential consultation.
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