You are going through a divorce, and the proposed marital settlement agreement calls for a waiver or termination of maintenance payments at the time of the granting of the final divorce. You are not sure what that means, and whether you should waive or not.

First off, what is maintenance? Maintenance is the right to receive spousal support (commonly referred to as alimony) from the other spouse. It is most times appropriate in a longer term marriage where there is a clear and significant economic disparity between the earning capacities between the spouses. Maintenance is usually not an issue in short term marriages, particularly with a younger couple, so on marriages of less than 7-10 years, absent extraordinary circumstances, maintenance is not an issue and a waiver may be considered appropriate. On a marriage of long term duration, 20 years or more, routinely maintenance is an issue in the case and a termination or waiver must be very carefully contemplated, if at all, as in a long term marriage, it is usually more appropriate if maintenance is not going to be paid between one spouse to the other, that the issue simply be “held open, ” in case there is a need in the future, based on a substantial change of circumstances, to seek spousal support from the other parent.

Secondly, Maintenance has tax implications, if done correctly. It is taxable income to the recipient and tax deductible to the payer. To achieve the tax deductibility, the payments must terminate upon the death of the recipient-spouse. Under Wisconsin law, marriage also terminates the maintenance obligations.

A waiver of maintenance, means that at the time of the divorce, you are giving up the right ever receive maintenance. You are waiving the request to receive maintenance at the time of the divorce, along with any time in the future. No matter what happens to you, you will be on your own and can never come back into court and ask that your spouse support you. The legal authority for the court being hand tied to consider maintenance after termination or the waiver, lies in sec. 767.59 (1c) (b) of the Wisconsin Statutes:

“A court may not revise or modify a judgment or order that waives maintenance payments for either party or a judgment or order with respect to final division of property.”

So, should you or shouldn’t you waive maintenance at the time of the divorce? If you are married a short period of time to your spouse, if you are young and healthy and have the ability to support yourself, now and into the future, and your income and that of your soon to be ex spouse is nearly the same, there is no need for maintenance, and a waiver may be perfectly appropriate, as long as you have a full understanding that you cannot change your mind about it and the court is hand tied to ever allow you to ask for maintenance in the future.

If on the other hand, you are married a considerable period of time to your spouse, let’s say 12-19 years, or it is a long term marriage, 20 years or more, one must consider their age, health, employment, estate, the parties’ respective incomes and the ability to be self sufficient before remotely considering any waiver of spousal support on a longer marriage. If there is a disparity in incomes between the parties on a longer term marriage, one should be seeking long term spousal support. Any waiver or termination of the right to receive maintenance on a long term marriage needs to be carefully thought out and gone over with your family lawyer, and any waiver must be done with the idea that perhaps, you are getting something back in return for the waiver, such as an increased property division buyout, or guaranteed section 71 payments in lieu of maintenance over a period of time. Before making any decision, seek the advice of your counsel and if pro se, talk to an experienced family lawyer before you waive maintenance and find yourself on the outside, looking in.

For more information about this article, contact Karp & Iancu.