You Probably Can’t Avoid It.

This article was originally written by attorney David Karp  and published on wisbar.org (link).

When two people file for divorce, depending on differing levels of income, one spouse may be owed financial support from the other spouse with respect to child support, family support payments, or maintenance payments. Spousal maintenance payments, or alimony, refers to court-ordered financial compensation awarded to a spouse typically to provide support in cases where that spouse makes less income or no income at all. This is generally to ensure both spouses steer clear of any negative financial outcomes before or after marital separation or divorce.

Overdue or late payments are called arrears.

For example, if a spouse fails to pay monthly alimony, a debt starts to accumulate, where the amount owed is referred to as the payor’s arrears. But, the Wisconsin court system has little to no authority over giving credit or clearing these arrears for the paying party.

So what other workarounds are available for the person responsible for paying support who may want to reduce or cancel such arrears?

Who qualifies for alimony in Wisconsin?

Short Answer: It depends.

There are no black and white rules to understand who a Wisconsin court will find eligible for monthly alimony payments or for forecasting how much those payments will be.

Can a Wisconsin court reduce or cancel alimony arrears?

Short Answer: No.

This is for two main reasons.

1. The first reason is that, according to Wis. Stat. S 767.59 (1m) – Payment Revision Prospective, Wisconsin’s trial court has very little hearsay over minimizing or dropping a monetary order (support order or arrearages of record) prior to the time a motion is filed and the other side is notified of the motion request. Although there are a fairly limited number of exceptions to this rule, the only exceptions that exist directly pertain to child support or family support orders, not alimony orders.
2. The second reason is that, when further discussing when a Wisconsin court can revise a judgment or order with respect to child support or family support, Section 767.59(1r) – Credit to Payer for Certain Payments excludes any mentioning of the term “maintenance payment.” The same thing applies when the section goes on to list five circumstances where child support or family support payments may be modified prior to the time a motion or petition is filed to modify the same, without acknowledging a case for maintenance arrears to be reduced or altogether resolved.

Examples of Wisconsin Court Cases that failed to reduce or cancel alimony arrears

There are two historical divorce court cases in Wisconsin where maintenance arrears accrued should have been waived.

Example 1: Unfair Spousal Benefits

When one spouse benefits or is “enriched” at the expense of another in situations that the law views as unfair.

Consider a father who wants to argue that a court denied his motion to recover half of the college expenses he had previously paid for his ex-partner’s adult daughters and claimed he was entitled reimbursement on the basis of unjust enrichment. Typically, if a spouse is unfairly enriched, the law imposes upon them to make restitution (restore funds) with the partner they’ve unfairly disadvantaged. This was the case of the Wisconsin Supreme Court case, Dahlke v. Dahlke, 258 Wis. 2d 764, 654 N.W. 2d 73 (Ct. App. 2002), where a spouse cannot argue in divorce court for equitable for unjust enrichment to be relieved.

So is one out of luck when it comes to receiving the right legal protection against having to pay alimony in full?

Let’s look at the same terms, but in a civil court setting.

Example 2: Lawsuit Against Unfair Benefits

When one spouse files a civil lawsuit against their former spouse with “unjust enrichment” as the argument.

It’s important to note, that even when arguing for unjust enrichment in civil court, that there’s still a remote possibility in winning that case. Here are the three requirements needed to make a case for unjust enrichment in a civil court setting as seen in Watts v. Watts, 37 Wis. 2d 506.​:

• a benefit conferred on the defending spouse by the other
• appreciation or knowledge by the defending spouse of that benefit
• acceptance or retention of the benefit by the spouse under circumstances making it inequitable for the defendant to retain the benefit.

You’ve got one option.

Karp & Iancu would like to recommend to the Wisconsin court system that Wis. Stat. section 767.59(1r) be amended to include relief not just in child support or family support cases, but in maintenance payment cases as well.

But until that amendment becomes reality, you unfortunately, have one option:

You have the right to pursue an “unjust enrichment” argument outside of the context of a family case.

Proceed with caution though. While a motion for reducing or cancelling alimony arrears can be considered up for debate depending on how much time has passed since the divorce on the basis of Wis. Stat. section 806.07., it’s unlikely a trial court would consider opening up a divorce judgment where a couple has been divorced for a significant period of time.

If you need further consultation, connect with a member of our legal counsel.

Related Content About Maintenance in Wisconsin:

• Deducting Maintenance from Your Taxes – Laws related to deducting temporary maintenance payments from your Wisconsin state taxes.
• Length of Maintenance in Wisconsin – What you need to know about the length of temporary maintenance payments in Wisconsin
• Waivers of Maintenance in Wisconsin – What you need to know about your rights related to waiving maintenance in Wisconsin