Terese J. Singer

Changing the Amount of Maintenance Awarded in Wisconsin

In a recent Wisconsin family law appellate decision, a husband appealed a divorce judgment on the grounds that he was not awarded enough maintenance at the time he and his wife divorced. He also appealed an order that came post-judgment and terminated the maintenance.

The couple married in 1999 and got divorced in 2016. Later in their marriage, they got income from a business founded by the wife in 2008. The income varied from year to year, peaking at $656,393 in 2012 and dropping in 2014 and 2015. The husband claimed he’d worked there full time, but after his wife filed for divorce, she stopped him from working there.

When the couple divorced in 2016, the court found the wife’s income had dropped and that the husband was able to earn $85,000. He was awarded limited-term maintenance in the amount of $4,000 each month for four years. A year after the couple divorced, the wife asked to reduce this maintenance on the basis that her business income had gone down more and would keep decreasing. The court found there was a substantial change in circumstances to form a basis for ending maintenance payments.

On appeal, the husband argued the lower court was required to find he was shirking in order to look at his earning ability rather than what he actually earned when calculating maintenance. He also argued that the court had made a mistake in estimating his earning capacity at $85,000.

The appellate court disagreed, holding that there was no need to find that he was shirking in order to calculate his earning ability instead of actual wages. The appellate court explained that shirking occurs when someone voluntarily earns less than what he reasonably could earn under the circumstances. Intent to avoid support requirements is not required. In this case, the lower court had found that the husband was voluntarily and unreasonably earning less than what he was able to earn. The lower court’s statements implied that given the husband’s experience and skills, he could earn $85,000 in many different ways if he tried.

The husband also argued that the finding that he could earn $85,000 was clearly a mistake. He argued that the lower court had made a mistake in adopting this figure from what he’d said in a business plan. The appellate court reasoned that the lower court hadn’t just taken that figure from the business plan, but had based the finding on his skills and experience.

The husband also argued it was unreasonable for the lower court to grant him another continuance to get discovery on the issue of modifying maintenance and that there had been no substantial change in circumstances. The appellate court was not persuaded by the husband’s claim that the lower court had mistakenly used its discretion to deny him a continuance.

The appellate court also disagreed with the husband that the lower court had erred in deciding there was a substantial change in circumstances. The husband argued the lower court shouldn’t have relied on the reports of $7200 each month and pointed to the wife saying that there could be a rebound in her business income. However, the appellate court didn’t find this characterization of the wife’s testimony to be accurate. Both the divorce judgment and post-judgment order were affirmed.

Whether you’re concerned about the court awarding maintenance, or you want to get the amount of maintenance changed after your divorce, it is crucial to consult an experienced family law attorney. At Reddin & Singer, LLP, our Milwaukee divorce attorneys can help you evaluate whether you may need a modification to child support in light of recent changes in your life and, if so, how to best accomplish that. To speak with a knowledgeable divorce lawyer today, do not hesitate to contact the law offices of Reddin & Singer, LLP online or give us a call at 414-271-6400.

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