Can the Courts Modify or Terminate Alimony post Divorce?
Can the Courts Modify or Terminate Alimony post Divorce?
In Wisconsin, can spousal maintenance or alimony be reduced or terminated by the courts? Can they act outside what is explicitly asked for by one of the spouses? Attorney Latrice Knighton of Sterling Lawyers explains how the landmark case Vander Perren v. Vander Perren sets the precedent for how the court rules on how maintenance can be reduced or terminated by the courts years later after the divorce was settled.
Alimony, known as spousal maintenance in Wisconsin, is meant to help maintain a reasonable standard of living for the lesser-earning spouse after a divorce. These payments are based on the circumstances at the time of the divorce judgment and can be changed.
However, is it possible for the court to change the amount or terminate automatically or without consent?
To dive into this question, let us go into some of the basics of how spousal maintenance works in Wisconsin.
Generally speaking, maintenance is only awarded in Wisconsin for marriages that lasted over ten years. This is not a legal rule; however, it is widely considered the norm. Additionally, maintenance is mostly awarded in cases where the income of one spouse is significantly higher than the other.
Though maintenance is often painted as “punishing” one spouse, its purpose is to try and smooth out the financial impact of a divorce. After 10+ years of marriage, it would be unreasonable to assume that the lesser earning spouse could suddenly live on their own at a similar standard of living without some financial assistance. One common purpose of maintenance is to help a spouse make a transition to supporting themselves.
However, the amount, duration, or even whether maintenance is included in a divorce settlement at all is not set in stone. Even if maintenance is awarded, payments can be modified or even stop entirely if the circumstances of either spouse significantly change. That might include one spouse remarrying, getting or losing a job, or any other situation that might majorly affect it.
There is a caveat to this – none of this can happen automatically. When the financial or living situations of a spouse changes, it is up to them to go in front of a judge and present their case so that maintenance can be modified or terminated.
The heart of this question is how much power a judge then has to make modifications to maintenance. Can they make changes that are not explicitly asked of the court?
This exact scenario happened in a 1982 case – Vander Perren vs. Vander Parren. A wife, who stayed at home with the kids, got divorced and was awarded maintenance. The payment was a set amount for an unlimited amount of time.
Five years later, the wife went to the court and asked for an increase in maintenance. As we discussed, this is possible under the law. The court agreed to increase the maintenance under the condition that the payments would end unless the wife went back to court to ask for a continuation.
When the time came for the payment to end, the wife once more asked for an increase in maintenance. The court not only reduced the maintenance payment but also decided to set end date as well.
The wife argued this could not be done, as she had only presented a request to increase her maintenance. Her husband, she contended, had not even made a motion to terminate or reduce maintenance, so those options should have been off the table.
This decision was partially reversed – the termination was deemed fair, the reduction in maintenance was not. However, the wife was wrong – the judge could decide the maintenance payments even when not explicitly requested.
Making changes to maintenance MUST be backed up with substantial evidence. When a motion is put in front of a judge, they will take the evidence and make a decision based on it – and sometimes, that decision may not go your way.
In this particular circumstance, the decision was reversed mostly because of a tax return miscalculation, not because the judge abused his discretion to make a change. Even though no one had argued that the wife’s maintenance should be terminated or even reduced, the evidence showed that she was not using her maintenance to become self-supporting.
So, the answer revealed here is two-fold:
Maintenance can ONLY change if the case is brought before a judge, or if the terms were agreed beforehand. Unless one spouse appears in court, the payments will continue as agreed at the time of the divorce.
Once the argument to change maintenance is brought in front of a judge – they can choose to increase, decrease, or terminate that maintenance depending on the evidence presented.
Therefore, if you consider asking for a change to a maintenance payment, either as the person paying it or receiving it, it is essential to consult a lawyer. Even though maintenance can sometimes seem unfair, trying to make changes can often cause unexpected results.
Case Law Friday is a Sterling series focused on communicating in layman's terms cases of precedent, statutes that guide decisions, and court procedures important to getting results in family law.
We hope these deep-dive conversations create clarity, enabling you to better understand the rules that govern how decisions get made in family court.
Sterling Lawyers, LLC is one of America's fastest-growing family law firms focused on innovating client service. Stay up to date with our weekly content by joining the Sterling Series email newsletter. We bring you stories about building strong families and creating healthy company cultures.
Recommended for you
It is important that the court acquires jurisdiction over the persons of the defendant and the plaintiff or the petitioner. Jurisdiction over the person of the defendant is acquired upon the proper service of summons. “If service isn’t proper, you’ll have to start all over again,” explains attorney Kinsler.
Our Most Important Stories Right Now
Want the Sterling Team in your inbox?Sadly, we won't fit but our newsletter will. Get a weekly recap of new Sterling Series episodes in your inbox each week.
The mission of the Sterling Series is to build up and strengthen families. Sterling Lawyers, LLC focuses on empowering family law clients in accordance with the Sterling Series mission and if you need help we are here for you. Getting started takes three simple steps.
Three Simple Steps
Find out how simple the divorce process can be when you work with a law firm that puts you first. Book your consult today!
3. MOVE FORWARD