June 21, 2017 – Many legal issues in the field of family law are resolved with arithmetic. Obviously, we set child support by applying the percentage guidelines found in Wis. Admin. Code chapter DCF 150. Maintenance has become a sophisticated calculation based on leaving each spouse with a percentage of net income after taxes. There are calculators and apps to do all that. Child placement is routinely established at equal or nearly equal placement. Division of the marital estate is an easy calculation with a property division worksheet, a programmed Excel spreadsheet that embeds the formulas to calculate a 50-50 split.
When the first “objective” child support formulas were developed, the hue and cry against this idea was remarkable. Judicial discretion was in peril; support figures would not be “fair,” and the end of lawyer advocacy was surely just around the corner. Today, the world runs on child support percentage guidelines, and the numbers calculated by those guidelines are understood to be fair results or even considered by some to be “rights.”
This trend to mathematical formulas and cookie-cutter child placement and custody arrangements has helped fuel the movement to self-representation in family court. As predicted by Richard Susskind in The End of Lawyers? (Oxford Univ. Press, 2008), the creation of simple or routine solutions to legal issues that can be resolved with straightforward, even fill-in-the-blank documents, makes law a commodity. Setting child support has become a commodity. You don’t need a lawyer for that, you just need your own computer. Lawyers are irrelevant and marginalized.
Not all areas of family law are quite so precise. Maybe lawyers are not yet completely irrelevant. Take, for example, the topic of “hardship.” Under Wis. Stat. section 767. 61(2)(b) property shown to be gifted to or inherited by one party is not divisible “unless it will be shown to create a hardship.” Hardship is defined by case law as “a condition of financial privation or difficulty.”1 Unlike child support, there is no precise formula for this. Instead, a finding of “hardship is a discretionary finding which we will affirm if there is any reasonable basis for it.”2
Diane Diel (Wisconsin 1976) of Diane S. Diel S.C. practices family law in Milwaukee. She is a past president of the State Bar of Wisconsin, past chair of the Wisconsin Collaborative Family Law Council, and past president of the International Academy of Collaborative Professionals.
Not helpfully, in Asbeck v. Asbeck, the court observed that “Hardship in one case may not be hardship in another case.”3 This translates roughly to “I know it when I see it.” More helpfully, the Asbeck court praised the circuit court’s “reasoned exposition” of its decision and stated that:
“[the] trial court’s discretionary choice should reflect the variety of considerations weighed and the conclusion logically derived from that weighing process. The result should show something more than an arbitrary choice and something less than application of a fixed standard.”4
In the more recent Popp v. Popp,5 the court reflected the urge to commoditize the law and observed:
“Since Asbeck, we have considered fashioning a more definite rule, noting that hardship issues are appearing with regularity in family law cases. We now conclude that a more specific rule is desirable and necessary.”6
It seems clear that the Popp court is seeking a way to commoditize the issue of hardship. Did it succeed? This is the Popp definition of hardship:
“The dictionary defines hardship, in part, as ‘privation’ or ‘difficulty.’ Webster’s Third New International Dictionary 1033 (1976). Adopting this definition, we conclude that the party claiming hardship must demonstrate that a failure to include the exempt assets in the marital estate will result in a condition of financial privation or difficulty. As we noted in Asbeck, whether a hardship exists will depend upon the varying considerations in each individual case. Asbeck, 116 Wis. 2d at 296, 342 N.W.2d at 754. A hardship determination must therefore be made in light of the facts and history of the case and the relative financial circumstances of the parties before and after the divorce. We reaffirm our statement in Asbeck that this consideration is not limited to essential needs only.”7
Is that definition helpful? Consider these case vignettes:
1) Long-term marriage. Marital estate net of debt is less than $350,000 in assets, and the recent inheritance is approximately $2 million. Neither husband nor wife work; the inheriting spouse has not worked for the entire marriage. Over the course of the marriage, the noninheriting spouse supported the family and included his family gifts into the marriage. The noninheriting spouse receives a monthly pension but will have to pay rent or mortgage payments. The inheriting spouse has a paid-for home in the inherited assets.
2) Short-term marriage. Marital estate is less than $40,000. Inheritance is $400,000. Young noninheriting spouse does not consistently work. Young inheriting spouse is employed full time. Inheriting spouse has no living family left; noninheriting spouse is being supported by her family.
Assume there are no issues of transmutation, mixing, or appreciation during the marriage. The only question is whether there is hardship. Are either or both noninheriting spouses in positions of hardship? In Asbeck and Hughes v. Hughes,8 both marriages were 40-plus years. However, no cases in this line of cases turn on the length of the marriage, and instead cases seem to turn on whether the circuit court articulates reasons the court of appeals finds persuasive or credible for why there is a hardship.
In Hughes, the inability of the wife to provide herself a proper lifestyle without the inherited funds was approved. In Popp v. Popp, the court of appeals did not find the circuit court’s reasons – that the wife’s standard of living would be adversely affected and that she would be “deprived of the economic benefit of her years of contribution to the family unit” – at all consistent with invasion of the inheritance. However, the Popp decision noted that each party received one-half of a substantial marital estate.
If this article were a trial skills workshop, this would be the time the moderator would say to discuss and advocate your client’s position. The topic of hardship provides a chance for truly, as Susskind would say, individually tailored, carefully handcrafted, “bespoke” services. This is the chance to use advocacy skills to carry the day. In other words, this is an issue for which a math equation might seem like a wonderful idea for lawyers wishing to use a formula and existing forms. Instead, this is an opportunity for lawyers to be relevant.
Endnotes
1 Doerr v. Doerr,189 Wis. 2d 112, 119, 525 N.W.2d 745 (Ct. App. 1994).
2 Asbeck v. Asbeck,116 Wis. 2d 289, 295, 342 N.W.2d 750 (Ct. App. 1983).
3 Id.at 296.
4 Id. at 295.
5 Popp v. Popp, 146 Wis. 2d 778, 432 N.W.2d 600 (Ct. App. 1998).
6 Id. at 792.
7 Id.
8 Hughes v. Hughes, 148 Wis. 2d 167, 434 N.W.2d 813 (Ct. App. 1988).
