Proving Shirking and Underemployment to Maximize or Reduce Wisconsin Alimony
Wisconsin courts do not let spouses intentionally avoid paying alimony by suddenly quitting their job or taking a massive pay cut. This legal concept is called 'shirking,' and courts can base alimony on what you should be earning.
In any divorce, both spouses must provide a truthful Form FA-4139V, Wisconsin, Circuit Court, Financial Disclosure Statement. But what happens if your soon-to-be ex-spouse suddenly quits their high-paying job right before filing for divorce? Or what if a supported spouse refuses to look for work? In Wisconsin, intentionally reducing your income to manipulate a divorce settlement is known as 'shirking' or voluntary underemployment. Whether your case is in the Milwaukee County Circuit Court, Milwaukee or the Brown County Circuit Court, Green Bay, judges have the power to 'impute' income-meaning they will calculate maintenance based on earning capacity rather than actual earnings. Hiring a local attorney through our US Lawyers directory is essential to prove or defend against shirking allegations.
What is Shirking in Wisconsin?
Under Wis. Stat. § 767.56, the court must consider the earning capacity of both parties when awarding maintenance. The definitive standard for shirking was established in Chen v. Warner, 280 Wis. 2d 344 (WI Supreme Court 2005). The Supreme Court of Wisconsin determined that shirking does not necessarily require a malicious intent to avoid support. Instead, a judge must determine if the employment decision was voluntary and reasonable under the circumstances. If the decision to reduce income was unreasonable, the court can impute income to that spouse, effectively ordering them to pay (or receive) alimony based on the salary they walked away from.
Quitting a High-Paying Job
If a spouse earning $150,000 as a corporate executive suddenly quits to work a $40,000 job at a local retail store just as the divorce begins, the court will closely scrutinize the move. If the spouse claims they quit due to extreme stress, they will need substantial medical evidence and testimony from psychologists to prove the job was detrimental to their health. Without valid, documented proof that leaving the job was necessary, the judge will likely find the decision unreasonable and impute the original $150,000 salary for the purpose of calculating maintenance.
Voluntarily Taking a Lower-Paying Position
Sometimes, a career change is legitimate. A spouse might leave a demanding, high-travel position for a lower-paying job that allows them to spend more time caring for their children. In Wisconsin, the court must balance the financial impact of the reduced income against the best interests of the family. If the lower-paying job provides better health benefits, a pension, or significantly reduces day-care costs, the judge might rule that the career move was reasonable and not an act of shirking.
Returning to School Post-Divorce
A common scenario involves one spouse wanting to return to college or graduate school to increase their future earning potential. While this is generally viewed favorably, it can temporarily reduce their income to zero. If the higher-earning spouse wants to return to medical school and asks to pause alimony, the court will evaluate if the long-term benefit outweighs the immediate financial devastation to the supported spouse. Conversely, if a supported spouse returns to school, the paying spouse may be required to pay maintenance for a set number of years to fund that education.
Using Vocational Evaluations to Impute Earning Capacity
How does a judge know what a spouse 'could' be making? Lawyers use Vocational Experts. If you believe your spouse is underemployed, your attorney can request the court to order your spouse to undergo a vocational evaluation. The expert will interview the spouse, review their resume, test their skills, and analyze the local job market in their specific Wisconsin city. The expert will then generate a formal report stating the spouse's true earning capacity. This report is often the deciding factor in a shirking case.
Costs & Timeline for Proving Shirking
Proving or defending against shirking requires a strategic, evidence-heavy approach, which takes time and financial resources. A vocational evaluation can add 2 to 4 months to the discovery phase of a divorce.
| Legal Service / Expert | Estimated Cost (USD) |
|---|---|
| Vocational Expert Evaluation & Report | $2,500 - $5,000 |
| Expert Witness Court Testimony | $1,500 - $3,000 per day |
| Attorney Representation (Discovery Phase) | $3,000 - $7,000 |
| Full Trial Litigation | $10,000 - $25,000+ |
Frequently Asked Questions (FAQ)
What happens if my spouse gets fired right before the divorce?
Being laid off due to company downsizing is not shirking, because it is involuntary. However, if they were fired for intentional misconduct (like stealing from the employer), the court might still impute their previous income.
Can the court force my ex to get a job?
The court cannot physically force someone to accept a job. However, the judge can impute an income to them and order them to pay support based on that imaginary income, which usually motivates them to find work.
Is retiring early considered shirking?
It depends. If a spouse attempts to retire at age 50 to avoid paying alimony, the court will likely find it unreasonable. If they retire at the standard age of 65 with health issues, it is generally considered reasonable.
Do I have to pay for my spouse's vocational evaluation?
Generally, the party requesting the evaluation pays the upfront cost of the expert. However, the court can reallocate these costs during the final property and debt division based on fairness.
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