Guide to divorce in Wisconsin

Spousal Support: Types, Duration, and Modification

October 11, 2023 Divorce, Property, Debt, & Finances

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.

Why Do Courts Order Maintenance?

In family law cases, courts typically order spousal support for one of three purposes.

  1. Rehabilitation. Spousal support can be ordered by a judge for the purpose of helping a spouse become self-supporting after a divorce. Perhaps one spouse left a career in order to raise the parties’ children and needs to return to school or requalify for a career-related license to be employable again. Maintenance helps support that spouse until he or she can return to the workforce and support themselves. Accordingly, this type of maintenance is generally for a short term. Divorce is never easy and many aspects of your life can be affected. These legal proceedings help clarify family law matters and try to ensure spousal support is met.
  2. Compensation. During a divorce spousal support can also be awarded for the purpose of repaying one spouse for uncommon contributions to the other spouse’s earning capacity—such as when one spouse pays to send the other spouse to college or medical school or gives up his or her own career so a spouse can pursue his or her dream of a military career. If one spouse’s higher income is due in large part to the personal or career sacrifices of the other party, the court will often order compensatory maintenance to that spouse. This is the least common type of spousal support, but it can provide the financial security that may be needed when life changes after a divorce.
  3. Continuity. The most common type of spousal support is awarded when it is necessary to maintain both spouses’ lifestyles at the standard of living they enjoyed during the marriage. This is most often the case when one spouse has been the primary breadwinner during the marriage while the other party has contributed to the marriage by managing the parties’ home, children, finances, etc. This kind of spousal support can be awarded for a fixed term or can even be awarded indefinitely under certain circumstances. Becoming a single parent has its own problems and sometimes this support can help to provide a familiarity to that life that is going through many changes.

How Do Courts Order Maintenance?

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.

How Long Does Maintenance Last?

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.

How is Spousal Support Modified?

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.