Maintenance After Retirement in a Wisconsin Divorce

Maintenance, often called alimony or spousal support, is money one former spouse pays the other after a divorce. Most often, those payments come from income earned at work.

But no one works forever.

So, what happens to maintenance when the paying spouse retires? It does not automatically end. In Wisconsin, retirement may justify reducing or ending payments, but unless the divorce judgment already provides for that result, the paying spouse must ask the court to change the order.

How Is Maintenance Determined in Wisconsin?

Retirement and Maintenance in a Wisconsin Divorce

Wisconsin does not use a single formula to decide whether maintenance should be awarded, how much should be paid, or how long payments should last. Instead, the court considers factors such as the length of the marriage, each spouse’s age, health, and education, the property division, the maintenance recipient’s earning capacity, the marital standard of living, tax consequences, and other relevant circumstances. Based on those circumstances, maintenance may be denied or ordered for either a limited period or an indefinite term. Wis. Stat. § 767.56(1c).

Two goals guide the court in deciding maintenance: supporting the recipient based on the parties’ needs and earning capacities, and reaching a fair financial result for both. In a long marriage, the court may use an equal division of the parties’ total income as a starting point, but it also may adjust that amount after considering the statutory factors. LaRocque v. LaRocque, 139 Wis. 2d 23, 32–33, 39, 406 N.W.2d 736 (1987).

Retirement adds another layer to that analysis.

What If Retirement Is Approaching During the Divorce?

Setting Clear Maintenance Terms Before Finalizing

If retirement is more than a vague someday plan, it should be addressed before the divorce is finalized.

A court setting maintenance will want a realistic picture of both spouses’ finances. That picture should include the expected retirement date, current wages, projected retirement income, pension and Social Security benefits, health-care costs, plans for future work, and the assets available to each spouse.

Wisconsin courts generally consider the parties’ financial circumstances as they exist when maintenance is decided. Courts may consider future developments, but their predictions must rest on evidence rather than guesswork. A definite, evidence-based retirement plan may therefore inform the maintenance decision, while an uncertain plan may be too speculative to rely on. Woodard v. Woodard, 2005 WI App 65, ¶¶ 6, 14, 281 Wis. 2d 217, 696 N.W.2d 221.

How the divorce judgment addresses retirement can make a significant difference. It may set a retirement-related end date, call for maintenance to be reviewed when retirement occurs, or provide for payments to decrease gradually. Because each of those options can lead to very different results, both spouses should understand the language before signing.

Notably, a complete waiver of maintenance is more final. Once a judgment waives maintenance, the court cannot later revise it to award maintenance. Wis. Stat. § 767.59(1c)(b).

Does Maintenance Automatically End When Someone Retires?

Rules for Wisconsin Maintenance After Retirement

Unless the divorce judgment provides otherwise, retirement does not change the existing maintenance order by itself.

Death and remarriage are treated differently. Maintenance ends when either former spouse dies. If the maintenance recipient remarries, the court must vacate the order after the recipient provides the required notice or after the paying spouse applies, gives notice to the recipient, and proves the remarriage. Wis. Stat. §§ 767.56(2c), 767.58(1)(c), 767.59(3).

If retirement substantially changes the paying spouse’s income in a way that affects the ability to pay, the paying spouse must notify the county child support agency and the recipient within ten business days. That notice only reports the income change; it does not lower the maintenance payment. Wis. Stat. § 767.58(1)(b).

To seek a lower payment, the paying spouse must separately ask the court for a new order. The court will reconsider maintenance only if the person requesting the change shows a substantial change in the parties’ financial circumstances since maintenance was last set. Retirement may be enough to meet that requirement, but it does not automatically mean the payments will be reduced or ended. Kenyon v. Kenyon, 2004 WI 147, ¶¶ 12-13, 38–39, 277 Wis. 2d 47, 690 N.W.2d 251.

Until the court enters a new order, the existing payment remains due. Wisconsin courts generally cannot reduce payments that came due before the recipient received notice of the court request, so waiting to begin that process may leave the paying spouse owing the original amount for additional months. Wis. Stat. § 767.59(1m).

Can Maintenance Be Modified After Retirement in Wisconsin?

Factors Courts Consider When Evaluating Post-Retirement Support Changes

Wisconsin does not set one age at which retirement automatically becomes reasonable. A court considers both the decision to retire and its financial effect on the former spouses. Retiring at a customary age after a long career looks quite different from leaving a well-paying job early, shortly after a maintenance order, with no health concern or settled retirement plan.

Relevant considerations may include:

• The retiring spouse’s age and health;
• The demands of the job;
• The timing of the retirement and whether it had been planned;
• The reason for leaving work;
• Whether the retiring spouse intends to keep working or has returned to work;
• How much retirement reduced that spouse’s income and other financial resources;
• The pension, investment, and other income available after retirement;
• The recipient’s income, resources, and reasonable expenses; and
• The overall financial effect on both former spouses.

If a paying spouse voluntarily and unreasonably reduces their income, the court may base maintenance on earning capacity rather than the smaller amount the spouse actually earns. Sellers v. Sellers, 201 Wis. 2d 578, 587, 549 N.W.2d 481 (Ct. App. 1996).

That does not mean every voluntary retirement is unreasonable. Most retirements are voluntary, after all. But even a reasonable retirement does not necessarily end maintenance. Payments may continue when the retired spouse still has the ability to pay and the recipient remains unable to maintain a standard of living reasonably comparable to the one enjoyed during the marriage. Heppner v. Heppner, 2009 WI App 90, ¶¶ 12–15, 319 Wis. 2d 237, 768 N.W.2d 261.

How Do Pensions and Retirement Accounts Affect Maintenance?

Property Division vs. Spousal Maintenance Income

Pensions and retirement accounts are usually addressed as property during a divorce. For many employer-sponsored plans, one option is a qualified domestic relations order, commonly called a QDRO. A QDRO can require the plan to pay a specified share of the participant’s benefits to a former spouse. Another option is to award the retirement benefit to one spouse and give the other spouse different property of comparable value.

If maintenance is reviewed later, the court must look back at how the retirement benefit was divided. Wisconsin law guards against unfairly counting the same value once as property and then again as income for maintenance. But not every retirement payment represents the same thing. A pension payment may simply return value already divided as property, while income generated by an investment asset is separate from the asset itself. McReath v. McReath, 2011 WI 66, ¶¶ 52–54, 60, 335 Wis. 2d 643, 800 N.W.2d 399.

The practical point is simple: a court cannot assume that every pension payment or retirement-account withdrawal is income available for maintenance. It must review the divorce judgment and determine what the payment actually represents.

Although maintenance can sometimes be changed, the final property division generally cannot. Retirement does not give either former spouse another opportunity to divide the marital property. Wis. Stat. § 767.59(1c)(b).

How Does Social Security Affect Maintenance?

Divorced-Spouse Benefits and Financial Eligibility

Unlike a pension or retirement account, Social Security benefits cannot be divided between spouses in a divorce. Even so, expected benefits may affect property division and maintenance because they affect each spouse’s finances in retirement. Danielson v. Danielson, 2024 WI App 57, ¶¶ 1–2, 414 Wis. 2d 1, 13 N.W.3d 239.

Some divorced people may qualify for benefits based on a former spouse’s work record. Generally, the marriage must have lasted at least ten years. The person’s age, current marital status, and benefits available through their own work record also matter. The Social Security Administration can confirm eligibility and estimate the amount available.

A divorced-spouse benefit does not come out of the former spouse’s payment. It also does not reduce benefits paid to the former spouse’s family.