Sometimes fairness dictates that spouses must continue to share income after the divorce. This can happen, for example, when the parties have had a long marriage and only one party was the primary income-earner, or when one party needs a little extra time to establish a professional earning history that will allow him or her to support themselves at the standard of living both parties enjoyed during the marriage. When such circumstances exist, the court can order spousal support or “maintenance.” A family law attorney can help understand this process and the court orders that are handed down from family law judges.
In family law cases, courts typically order spousal support for one of three purposes.
Unlike child support, which is based on a prescribed mathematical formula, spousal support is left to the subjective discretion of the judge who must make a decision based on a number of factors, including:
● The length of the marriage
● The age and physical and emotional health of both parties
● Each party’s educational level and work history
● The earning capacity of each party
● The likelihood that the party seeking maintenance can become self-supporting at standard of living comparable to that enjoyed during the marriage
● Each party’s contributions to the marriage
. . . and several other factors. However, the driving consideration is how to fairly share income between the spouses so that, to the extent possible, the financial consequences of the divorce are borne equally by both parties and that both parties are given roughly the same tools and opportunity to financially recover.
If the court determines spousal support should be paid, the term will be set for a period of months or—more likely—years based upon the goals and objectives set forth above.
During that time period, however, the support order can be modified if your circumstances substantially change. If, for example, you lose your job, your spouse receives large promotions or bonuses, or one of you becomes ill and unable to work, you might be able to modify either the amount or the duration of your spousal support payments.
Sometimes, the court will order “indefinite” maintenance. This does not mean you must pay (or that you will receive) maintenance forever. This merely means the order will remain in effect until further order of the court—which could be months from now or years from now depending on your circumstances. This is the court’s way of leaving the maintenance termination date “open” and flexible in order to accommodate changing circumstances such as a party’s pending retirement, the receipt of a forthcoming inheritance, or the emancipation of the parties’ children.
In any event, spousal support typically terminates automatically if the recipient spouse remarries or if either spouse dies.
Spousal support can be modified in one of two ways: Through agreement or through litigation.
Parties can agree to modify their spousal support outside of court by negotiating with each other directly, through lawyers, or via alternative dispute resolution such as mediation. Reaching an agreement outside of court allows the parties the most discretion and flexibility to establish a spousal support obligation that meets their objectives.
Once an agreement is reached, the parties can file a “Stipulation and Order” in their underlying court case and, once approved by the judge, the new support obligation will take effect. This can usually be accomplished entirely on paper and without a court hearing.
If parties cannot agree to modify spousal support, one party or the other will have to file a Motion in court asking for a modification. They will have to explain why they are seeking a modification and will have to specify the “substantial change in circumstances” that has occurred since entry of the last support order. Common reasons to request a support modification include a change in one or both parties’ incomes or employment status; the emancipation of the parties’ children; or one or both parties reaching a reasonable retirement age.
One thing that can never be modified is a waiver of spousal support. If, at the time of divorce, one spouse or the other waives maintenance, they cannot ever come back to court to seek spousal support from the other party—even if they experience a substantial change in circumstances that would justify a maintenance award.
Parties also cannot modify maintenance orders that they have specifically agreed will be non-modifiable as part of a comprehensive divorce settlement.
For more information on spousal support and how it might work in your particular case, call one of our Milwaukee family lawyers at (414) 485-0191 for a consultation or contact us about the divorce process and support of a spouse.
933 N. Mayfair Rd., Suite 300
Milwaukee, WI 53226
M – F: 6:30am – 8pm
Sa – Su: 7:30am – 6pm