During the divorce process the court has to make a determination if maintenance (alimony) should be awarded. As discussed in a prior blog, maintenance is ultimately a case-by-case decision that considers several factors found under 767.56 of the Wisconsin Statutes. These factors include the length of the marriage, the age and health of each party, the division of property during the divorce, the earning capacities of each party, and each party’s respective financial circumstances at the time of divorce.
At the conclusion of the divorce, a maintenance award, if granted, will include a specific monetary amount to be paid over a specific duration. After the divorce has been finalized, people often wonder whether or not they may revise or terminate a maintenance award. The legislature understands that lives change post-divorce and that increased or decreased financial circumstances are the byproduct of that change.
In regard to Wisconsin Statutes 767.59, maintenance orders may be modified, but only if there is a substantial change in circumstances, though, in reality, no black-and-white rule exists that can provide a straightforward answer. Even so, courts have generally considered the following criteria enough to warrant a review of the existing maintenance based on substantial change:
- Change in the cost of living (767.59(1k)
- The loss of a job
Naturally, there is no guarantee that modification based on these criteria will be automatic. To succeed you must prevail in your burden of proof. If you are the individual seeking the modification to lower your payment, you bear the burden of proving to the court that the change is indeed substantial. Conversely, if you are the one seeking a modification to raise the payment you receive, the burden shifts to you, and you must provide the necessary proof to justify the increase.
Generally speaking, minor changes in income or cost of living will not be sufficient to modify your existing maintenance. I like to categorize this as anything less than a $10,000 difference in financial circumstances from when your last orders were entered. If you are above this threshold, however, your chances of obtaining a modification are better.
How can I terminate my maintenance award?
The only foolproof way of terminating a maintenance award is through the remarriage of the spouse who is receiving maintenance payments. In regard to statute 767.59(3), the court shall vacate the order requiring maintenance so long as the following steps are followed: 1) file an application/motion with the court, 2) provide notice to the payee, and 3) provide the court with proof of the remarriage.Attempting to modify your maintenance after judgment can be both difficult and overwhelming. So, it is always a good idea to consult with an experienced divorce attorney. While no one can guarantee that your attempted modification will be successful, finding out in advance if you have a case for modification is better than filing a motion on your own and being denied. To schedule your free consultation on this—or any other—legal issue, give us a call today at (920) 383-1116.