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  • September 25, 2020

    Is There a Way to Cure Maintenance Arrearages in Wisconsin?

    Section 767.59 greatly limits the trial court's authority to modify maintenance payments or arrears accrued prior to the filing of a motion. David Karp explores other remedies that may be available to cure maintenance arrearages.

    David B. Karp

    broken money heart

    Under Wis. Stat. section 767.59 (1m), the court has limited authority to give credit due to past support arrears prior to the time a motion is filed, and has no authority under the existing statute to clear maintenance arrears prior to the date that notice of the action is given to the opposing side, except to correct previous errors in calculations.

    What other remedies may be available?

    At Issue: Section 767.59

    Section 767.59(1m) – Payment Revision Prospective – reads as follows:

    In an action under sub. (1c) to revise a judgment or order with respect to child support, maintenance payments, or family support payments, the court may not revise the amount of child support, maintenance payments or family support payments due, or an amount of arrearages in child support, maintenance payments, or family support payments that has accrued, prior to the date that notice of the action is given to the respondent, except to correct previous errors in calculations.

    David B. Karp David B. Karp, Marquette 1982, is a shareholder with Karp & Iancu, S.C., Milwaukee, where he concentrates his practice in family law.

    The statute greatly limits the trial court’s authority to offer relief to a support order or arrearages of record prior to the time a motion is filed and the other side is noticed of the request. There are some very limited exceptions to this rule, but – interestingly, upon closer look of the statute – there are only exceptions for child support and family support orders, not for maintenance.

    Section 767.59(1r) – Credit to Payer for Certain Payments – reads in part as follows:

    In an action under sub. (1c) to revise a judgment or order with respect to child support or family support, the court may grant credit to the payer against support due prior to the date on which the petition, motion, or order to show cause is served for payments made by the payer other than payments made as provided in s. 767.57 or 767.57, in any of the following circumstances. …” (emphasis added).

    Notice how in this section, “maintenance payments” is excluded. Section 767.59(1r) goes on to state five statutory 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. Those circumstances are very limited as well and do not apply in a maintenance case.

    Unjust Enrichment and Dahlke

    If the statute does not offer a remedy to modify maintenance payments or arrears accrued prior to the filing of a motion, what remedy does an aggrieved party have, if any?

    In Dahlke v. Dahlke,1 the court ruled that a common law action for unjust enrichment cannot be litigated in a divorce action. The case involves an aggrieved party who argued that the trial court erred in denying his motion to recover half of all college expenses that he paid for the parties’ adult daughters. He claimed he was entitled to reimbursement on the basis of unjust enrichment.

    His claim of equity or unjust enrichment was denied, with the court stating the following:

    Furthermore, a common law claim of ‘unjust enrichment’ involves aspects of civil procedure that do not apply in actions affecting the family. A common law claim of ‘unjust enrichment’ contemplates its own set of pleadings, separate and distinct from those in a family court action. See. E.g. WIS. STAT. ch. 801, WIS. STAT. s. 767.0-85 (setting forth requirements for a petition in an action affecting the family): WIS. STAT. s. 767.025 (setting forth filing procedures for orders for enforcement and modification of family law judgments). Moreover, as the jury instructions suggest, an unjust enrichment action can be tried to a jury whereas juries are not available in a divorce action.

    Unjust Enrichment and Watts

    So, if:

    • section 767.59 offers no relief to adjust maintenance payments or arrears prior to the time a motion is filed and served, and

    • case law indicates one cannot argue equitable or unjust enrichment to be relieved of the order or accrued arrears prior to the time the motion is filed,

    is one simply out of luck and without any legal recourse?

    While Dahlke does not allow an unjust enrichment argument in divorce court, one may not necessarily be foreclosed from doing so in civil court.

    In Watts v. Watts,2 one would have to meet three elements in making an unjust enrichment argument:

    • a benefit conferred on the defendant by the plaintiff;

    • appreciation or knowledge by the defendant of the benefit; and

    • acceptance or retention of the benefit by the defendant under circumstances making it inequitable for the defendant to retain the benefit.

    While Watts deals specifically with an unmarried couple, a prior married party aggrieved under section 767.59 for maintenance payments or arrears has no other legal remedy available to them, other than possibly considering filing a civil lawsuit against their former spouse utilizing the “unjust enrichment” argument.

    A Possibility: Section 806.07

    The only other possible remedy would be for a party aggrieved to file a motion under Wis. Stat. section 806.07.

    However, if brought under either subsections (a) or (c), the motion must be brought within one year, or is otherwise barred. If brought under subsection (h), such motion must be brought within a “reasonable period of time.” That may be problematic in a situation where a couple has been divorced for many years.

    Choices Are Limited

    In conclusion, either

    • section 767.59(1r) needs to be amended to include relief not just in child support or family support cases, but in maintenance payment cases as well, or

    • alternatively, one should have the right to pursue an “unjust enrichment” argument outside of the context of a family case, arguing that Watts applies in such circumstances.

    While a motion for relief can also be considered under section 806.07 depending on how much time has past since the divorce, it is unlikely a trial court would consider opening up a divorce judgment where a couple have been divorced for a significant period of time.

    This article was originally published on the State Bar of Wisconsin’s Family Law Section Blog. Visit the State Bar sections or the Family Law Section web pages to learn more about the benefits of section membership.


    1 Dahlke v. Dahlke, 258 Wis. 2d 764, 654 N.W. 2d 73 (Ct. App. 2002),

    2 Watts v. Watts, 137 Wis. 2d 506.​

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