Modifying Spousal Support in Wisconsin: Income Changes & Cohabitation
What you need to know when your ex files to change your maintenance order.
You’ve been served. Just a few years after the divorce, your ex Dan has filed a motion to modify the maintenance order. Under the original order, he was required to pay you $2,000 per month. Dan alleges that his prior employment changed, and he is now earning substantially less income. He also cites concerns that you have been living with a significant other.
Your mind is flooded with questions:
How could living with my new partner affect my maintenance order? Did Dan lose his previous job? Could he have changed his job on purpose to get out of his maintenance payments??
If you find yourself in a similar situation, don’t panic! In today’s blog, I will cover the basics of maintenance orders and modifications, including how changes in income or cohabitation may affect your current maintenance order.
What is Maintenance?
Maintenance refers to the monthly financial support either party may be ordered to pay following a legal separation, divorce, or annulment. While “maintenance” is the statutory term used in Wisconsin, you may have also heard the terms “spousal support” or “alimony” used interchangeably.
When awarding maintenance, the Court generally focuses on two distinct objectives:
- The Support Objective – to support the recipient spouse in accordance with the needs and earning capacities of the parties.
- The fairness objective – to ensure a fair and equitable financial agreement between the parties in each individual case.
What Factors Determine the Amount of Maintenance Ordered?
Wisconsin Statute Sec. 767.56, states in part, “…the court may grant an order requiring maintenance payments to either party for a limited or indefinite length of time after considering:
- The length of the marriage.
- The age and physical and emotional health of the parties.
- The division of property made under s. 767.61.
- The educational level of each party at the time of marriage and at the time the action is commenced.
- The earning capacity of the party seeking maintenance, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for the children and the time and expense necessary to acquire sufficient education or training to enable the party to find appropriate employment.
- The feasibility that the party seeking maintenance can become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage, and, if so, the length of time necessary to achieve this goal.
- The tax consequences to each party.
- Any mutual agreement made by the parties before or during the marriage, according to the terms of which one party has made financial or service contributions to the other with the expectation of reciprocation or other compensation in the future, if the repayment has not been made, or any mutual agreement made by the parties before or during the marriage concerning any arrangement for the financial support of the parties.
- The contribution by one party to the education, training or increased earning power of the other.
- Such other factors as the court may in each individual case determine to be relevant.
Maintenance Modifications
The appropriate test for modification of a maintenance award is whether there has been a substantial change of circumstances considering the fairness to both parties and whether it is unjust or inequitable to alter the original maintenance award. Rhode-Giovanni v. Baumgart, 2004 WI 27.
What counts as a “substantial change”?
Minor fluctuations in income typically do not justify modifying a maintenance order. There needs to be proof of a substantial change in circumstances. A few examples of a circumstances that may qualify as a “substantial change” include:
- A significant change in income or earning capacity.
- A significant change in the cost of living/financial needs.
- A long-term job loss or significant decrease in income due to circumstances such as a medical disability or mandatory retirement.
What if my ex-spouse reduced their income by choice?
If your ex-spouse chooses to lower their income by quitting their job or taking a lower paying position, the court will not automatically allow them to pay less in maintenance. Wisconsin courts will first consider whether “shirking” has occurred and whether the income change was reasonable considering the circumstances.
“Shirking”
- In the context of maintenance, “shirking” refers to an individual who purposefully reduces their income or refuses to work in order to avoid paying their full support obligation. If someone chooses to earn less (without a good reason), the court may state that the individual is “voluntarily unemployed or underemployed” (shirking).
Reasonableness
- Just because a decision was made in good faith does not mean the court will agree to modify maintenance. Courts may conclude that the decision was unreasonable considering the individual’s obligation to support their previous spouse. This would result in an imputation finding, which means the new income does not reflect the income or earning capacity the court should use for determining maintenance.
Van Offeren v. Van Offeren and Balaam v. Balaam are two Wisconsin Supreme Court Cases that dealt with these concepts.
Van Offeren v. Van Offeren
This Wisconsin Supreme Court Case addressed voluntary employment decisions. William Van Offeren appealed from a trial court order denying his post-divorce motion to temporarily eliminate child support and maintenance. He argued that the trial court erred when it determined that the reduction of income caused by his change of employment constituted “shirking.” The Court decided William unreasonably reduced his income by voluntarily terminating his employment and starting his own business. The Court agreed with the trial court’s finding that William was shirking and that he was thus not entitled to a reduction of his child support or maintenance obligations.
Balaam v. Balaam
In Balaam, the supreme court dealt with the question of whether a husband was intentionally shirking his support obligations where it appeared that he was earning less at the time of the divorce than he had earned in previous years. There, the husband’s reduction in income was due to a deterioration of his business; the reduction in income was involuntary. The court held that absent a finding of intent to disregard support obligations, the trial court’s consideration of the husband’s earning capacity—rather than actual earnings—was improper.
The Balaam court also stated, however, that: A divorced husband should be allowed a fair choice of a means of livelihood and to pursue what he honestly feels are his best opportunities even though he might for the present, at least, be working for a lesser financial return. However, this rule is still subject to what is reasonable considering his obligations to his children and his former wife.
The Court acknowledged that a shirking determination usually implies a finding of intent to avoid support obligation, but stated even where the obligated person’s voluntary reduction in income is well intended, it is proper to assess the reasonableness of that decision in light of the person’s support or maintenance obligations. Such a rule adequately protects those entitled to support and maintenance, and permits the obligor to reasonably choose a means of livelihood and to pursue what the obligor honestly believes are the best opportunities though the financial returns may, for the present, be less.
Can Cohabitation Impact Maintenance?
The Court may not relieve a payor of maintenance based solely on the fact that the payee is cohabitating. However, if cohabitation enhances the recipient spouse’s financial circumstances, then maintenance may be modified or terminated.
Van Gorder v. Van Gorder
A Wisconsin Supreme Court case that helps explain how cohabitation can affect maintenance is Van Gorder v. Van Gorder.
In this case, the Court stated, “maintenance payments can be justified on one ground only – the obligation of the supporting spouse to support the other spouse in a manner to which that spouse was accustomed during the marriage”.
Van Gorder also identified two concerns that arise when a former spouse cohabits while continuing to receive maintenance payments. First, where the cohabitation does enhance the recipient’s financial condition, payments that are no longer needed for support should not have to be made. Second, cohabiters should not be able to organize their relationship and finances in a manner that is intended solely to prevent the modification of maintenance payments.
Final Thoughts
If you believe your maintenance order needs to be modified or your ex-spouse has filed a motion to modify maintenance, be sure to speak with an experienced family law attorney about the specific facts of your case.
If you have any additional questions or would like to learn more about your options, we invite you to contact HKK Law Offices. Our attorneys are available to meet by phone, video conference, or in person at our offices in Sheboygan, Mequon, and Random Lake. For more educational family law and estate planning content, check out our TikTok, YouTube, Instagram, Facebook, and LinkedIn platforms.
Disclaimer: This article is provided for general educational purposes only and should not be considered legal advice. Reading this article does not create an attorney-client relationship. Because every situation involves unique facts and circumstances, you should consult a qualified attorney regarding your specific legal needs.
