Wisconsin Maintenance Payments
The supreme court has recognized that maintenance is a flexible tool available to the trial court to ensure a fair and equitable determination in each individual case. See Lundberg v. Lundberg, 107 Wis. 2d 1, 12, 318 N.W.2d 918 (1982).
"A trial court should examine all the relevant circumstances of a particular case and may employ maintenance, property division or a combination of the two in order to fairly compensate a spouse." Id. at 15.
We see no reason to limit a trial court's flexibility by categorically removing the option of awarding an unequal property division in lieu of current maintenance and also holding maintenance open.
The proper inquiry is whether the trial court properly exercised its discretion in doing so in this particular case, and we turn to that question now.
Property Division and Maintenance
The division of the marital estate and the decision whether to award maintenance, and, if so, how much, are all committed to the trial court's discretion. See Sellers v. Sellers, 201 Wis. 2d 578, 585, 549 N.W.2d 481 (Ct. App. 1996).
We affirm a trial court's discretionary decision if the court makes a rational, reasoned decision and applies the correct legal standard to the facts of record. See id.
We accept all findings of fact made by the trial court unless they are clearly erroneous. See Wis. Stat. 805.17(2).
Whether the trial court applied the correct legal standard is a question of law, which this court reviews de novo. See Cook v. Cook, 208 Wis. 2d 166, 172, 560 N.W.2d 246 (1997).
With respect to the division of the marital estate, the presumption is an equal division, although the court may alter the distribution after considering various factors. See Wis. Stat. 767.255(3).
Wisconsin Stat. 767.255(3) provides:
(3) the court shall presume that all property not described in sub. (2) (a) is to be divided equally between the parties, but may alter this distribution without regard to marital misconduct after considering all of the following:
(a) the length of the marriage.
(b) the property brought to the marriage by each party.
(c) Whether one of the parties has substantial assets not subject to division by the court.
(d) the contribution of each party to the marriage, giving appropriate economic value to each party's contribution in homemaking and child care services.
(e) the age and physical and emotional health of the parties.
(f) the contribution by one party to the education, training or increased earning power of the other.
(g) the earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage.
(h) the desirability of awarding the family home or the right to live therein for a reasonable period to the party having physical placement for the greater period of time.
(i) the amount and duration of an order under s. 767.26 granting maintenance payments to either party, any order for periodic family support payments under s. 767.261 and whether the property division is in lieu of such payments.
(j) Other economic circumstances of each party, including pension benefits, vested or unvested, and future interests.
(k) the tax consequences to each party.
(L) Any written agreements made by the parties before or during the marriage concerning any arrangement for property distribution ....
(m) Such other factors as the court may in each individual case determine to be relevant.
Section 767.26, Stats., provides as follows:
Maintenance payments. Upon every judgment of annulment, divorce or legal separation, or in rendering a judgment in an action under s. 767.02 (1) (g) or (j), the court may grant an order requiring maintenance payments to either party for a limited or indefinite length of time after considering:
(1) the length of the marriage.
(2) the age and physical and emotional health of the parties.
(3) the division of property made under s. 767.255.
(4) the educational level of each party at the time of marriage and at the time the action is commenced.
(5) 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 children and the time and expense necessary to acquire sufficient education or training to enable the party to find appropriate employment.
(6) 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.
(7) the tax consequences to each party.
(8) Any mutual agreement made by the parties before or during the marriage ....
(9) the contribution by one party to the education, training or increased earning power of the other.
(10) Such other factors as the court may in each individual case determine to be relevant.