Spousal Maintenance
- by Eric C. Nelson, Attorney
I. Initial Spousal Maintenance Awards.
[The spousal maintenance statute was extensively modified as of August 1, 2024, in ways that mostly just codified what were already generally considered to be "best practices" in spousal maintenance determinations. This article has been revised to incorporate the latest statutory updates].
Spousal maintenance awards can be difficult to predict, more so than any other issue in family law practice, because unlike child support, spousal maintenance is not controlled by any precise guideline formula, and both the amount and duration of an award of spousal maintenance are within the broad discretion of the trial court.
Essentially, an award of spousal maintenance requires three showings:
Spousal maintenance determinations are now basically a 3-step process:
Step 1: Determine whether a spouse needs maintenance in order to make ends meet, considering the standard of living established during the marriage. If so, proceed to Step 2. If not, then spousal maintenance is denied. [2].
This step requires careful analysis of a spouse's reasonable post-divorce living expenses and income. Key word: "reasonable."
Step 2: Determine the duration of spousal maintenance.
A) Marriages of Less Than 5 Years:
There is now a rebuttable legal presumption that for marriages of less than five years — measured from the date of marriage to the date of service of a summons and petition for divorce — there should be no spousal maintenance, even if one would otherwise need it to maintain the standard of living established during the marriage. [3]. The way to overcome this presumption would be to show some kind of unfairness despite the short duration (e.g., a spouse became disabled after the date of marriage; or a spouse made career sacrifices for the sake of the marriage or rearing of the children).
B) Marriages of 5 to < 20 Years:
For marriages with of between 5 years and less than 20 years of duration, there is now a rebuttable legal presumption that the duration of maintenance should be "transitional maintenance" lasting for one-half the length of the marriage. [4] The way to overcome this presumption would be to show some unfairness in the presumed duration, whether because of disability or some other factor. The age of the parties, and their proximity to retirement, can also be a factor that argues against the presumed duration. Another important factor is the amount of time it is expected to take for a recipient of transitional maintenance to complete necessary training and/or schooling to become self-supporting at the standard of living established during the marriage. For this reason, if a spouse is unemployed or underemployed at the time of the divorce, it is not uncommon to have a vocational evaluation done, in order to have an expert opinion as to the party's employability and earning potential, with or without additional education.
C) Marriages of 20+ Years:
For marriages lasting 20 or more years, the statutory presumption calls for an "indefinite" duration, meaning that it continues until there is a substantial change of circumstances to justify modifying it in the future. [5]. The most common reasons for modification are: the payor retires; the payor is involuntarily terminated from his employment; there is a substantial but involuntary decrease in the payor's income; or the recipient has a substantial increase in income. (See discussion below).
Step 3: Determine the Amount of Spousal Maintenance.
While there are many nominal factors in determining the amount of spousal maintenance, it boils down to a determination of need versus ability to pay. [6] If in Step 1, a spouse is determined to have a need for spousal maintenance, but the spouse from whom it is sought has no ability to pay it on top of his or her own expenses, then there will be no spousal maintenance award, because as the saying goes, "you can't squeeze blood out of a turnip."
Sometimes, however, the Court will apply a "share the pain" approach. This can happen where it is clear that a spousal maintenance recipient would suffer hardship without spousal maintenance in a certain amount, but paying that amount would cause the payor to suffer hardship. The Court may then order the parties to "share the pain," by awarding spousal maintenance in an amount that is insufficient for the recipient to meet his or her claimed living expenses, but also leaves the payor with insufficient income to pay his or her own claimed living expenses.
A common complaint I often hear is that the spouse seeking maintenance was a lazy good-for-nothing bum. In practice, however, despite this argument often being made, I've never seen a Court decide spousal maintenance based on a finding that the recipient was lazy and therefore shouldn't be entitled to maintenance, even if the party did nothing but park him/herself on the couch and watch TV for 30 years while the working spouse yelled at him/her every day to quit being a bum and get a job. The prevailing attitude seems to be that since marriage is a partnership, and you didn’t divorce the lazy bum sooner, then you’re stuck with those partnership terms, and the consequences therefrom. Courts don't want to get into a lot of back-and-forth about who did more chores of various kinds.
Regardless of whether the spousal maintenance award is "transitional" or "indefinite," the Court will normally expect all non-disabled parties to eventually be employed, assuming they are of employment age.
II. Modification of Spousal Maintenance.
The only way to legally prevent future modification of spousal maintenance is for both parties to stipulate to a so-called Karon waiver at the time the award is made. [7] This is a great way to avoid having to return to Court to readdress spousal maintenance every time there is a substantial change of circumstances; but it also locks you in, which can bite both ways depending on what the future holds. It is critical to consult an attorney before proposing or agreeing to any Karon waiver.
In the absence of a Karon waiver stating otherwise, spousal maintenance terminates automatically upon the death of either party, or the remarriage of the recipient. [8]
Apart from death or remarriage, any spousal maintenance award that is not limited by a Karon waiver may be terminated, suspended, extended in length, or reduced or increased in amount, upon proof of a substantial change of circumstances to justify the modification. [9] As summarized above, regardless of the duration of a spousal maintenance award, the most common reasons for modification are: A) the payor retires; B) the payor is involuntarily terminated from his employment; C) there is a substantial but involuntary decrease in the payor's income; D) the recipient has a substantial increase in income; or E) cost of living adjustments.
A. Retirement.
The statute which took effect on August 1, 2024 helpfully addresses this common reason for modification of spousal maintenance. [10] Such retirement must be in good faith, and not to unjustifiably limit income. There is now a legal presumption that retirement is in good faith as long as the payor has reached the full Social Security retirement age (typically age 67). [11]. Note that this is not a presumption that retirement before age 67 is in bad faith, as is sometimes argued.
The statute allows a party to bring a motion for modification of spousal maintenance before retiring, as long as a desired date of retirement is specified. This allows a party to obtain a court determination as to the reasonableness of the proposed retirement, before actually retiring. One should consult with an attorney to address a retirement-related modification about six months prior to retirement, ideally.
B. Involuntary Termination from Employment.
Key word: "involuntary." If you quit your job without a very compelling reason, the Court will not modify spousal maintenance based on your lost source of income.
If you receive severance pay, that will be treated as ongoing income for purposes of determining whether or not to modify spousal maintenance.
In the absence of an agreement to the contrary, the Court cannot modify spousal maintenance retroactive to the date of service of a motion to modify it. [12]. Therefore, as soon as one is involuntarily terminated from employment, one should consult with an attorney to formulate a plan for pursuing modification.
C. Involuntary Decrease in Payor's Income.
Key word: "involuntary." If you switch jobs voluntarily, resulting in decreased income, it is highly unlikely that the Court will modify spousal maintenance based upon that choice, without a very compelling rationale other than "my old job was too stressful." If the change is for reasons of physical or mental health, you'd better have a medical or mental health professional be prepared to go on record in support of it.
D. Substantial Increase in Recipient's Income.
A substantial increase in the recipient's income is another common reason for modification of spousal maintenance. This often occurs after a period of higher education or other training or certification of the recipient spouse.
E. Cost of Living Adjustments.
Spousal maintenance is subject to modification without a motion, based on cost of living increases, once every two years, upon proper legal notice. The basic principle is that spousal maintenance will increase by a percentage equal to the cost of living increase, or the percentage increase in the payor's income, whichever is less. [13]. A cost of living notice may be successfully challenged by motion, if one's income doesn't support the COLA. (I once brought and won a case at the Court of Appeals on this issue, thereby confirming this as a matter of law). [14].
Footnotes:
[The spousal maintenance statute was extensively modified as of August 1, 2024, in ways that mostly just codified what were already generally considered to be "best practices" in spousal maintenance determinations. This article has been revised to incorporate the latest statutory updates].
Spousal maintenance awards can be difficult to predict, more so than any other issue in family law practice, because unlike child support, spousal maintenance is not controlled by any precise guideline formula, and both the amount and duration of an award of spousal maintenance are within the broad discretion of the trial court.
Essentially, an award of spousal maintenance requires three showings:
- Need of a party for spousal maintenance.
- Ability of a party to pay spousal maintenance.
- Sufficient length of marriage to establish “entitlement”. [1]
Spousal maintenance determinations are now basically a 3-step process:
Step 1: Determine whether a spouse needs maintenance in order to make ends meet, considering the standard of living established during the marriage. If so, proceed to Step 2. If not, then spousal maintenance is denied. [2].
This step requires careful analysis of a spouse's reasonable post-divorce living expenses and income. Key word: "reasonable."
Step 2: Determine the duration of spousal maintenance.
A) Marriages of Less Than 5 Years:
There is now a rebuttable legal presumption that for marriages of less than five years — measured from the date of marriage to the date of service of a summons and petition for divorce — there should be no spousal maintenance, even if one would otherwise need it to maintain the standard of living established during the marriage. [3]. The way to overcome this presumption would be to show some kind of unfairness despite the short duration (e.g., a spouse became disabled after the date of marriage; or a spouse made career sacrifices for the sake of the marriage or rearing of the children).
B) Marriages of 5 to < 20 Years:
For marriages with of between 5 years and less than 20 years of duration, there is now a rebuttable legal presumption that the duration of maintenance should be "transitional maintenance" lasting for one-half the length of the marriage. [4] The way to overcome this presumption would be to show some unfairness in the presumed duration, whether because of disability or some other factor. The age of the parties, and their proximity to retirement, can also be a factor that argues against the presumed duration. Another important factor is the amount of time it is expected to take for a recipient of transitional maintenance to complete necessary training and/or schooling to become self-supporting at the standard of living established during the marriage. For this reason, if a spouse is unemployed or underemployed at the time of the divorce, it is not uncommon to have a vocational evaluation done, in order to have an expert opinion as to the party's employability and earning potential, with or without additional education.
C) Marriages of 20+ Years:
For marriages lasting 20 or more years, the statutory presumption calls for an "indefinite" duration, meaning that it continues until there is a substantial change of circumstances to justify modifying it in the future. [5]. The most common reasons for modification are: the payor retires; the payor is involuntarily terminated from his employment; there is a substantial but involuntary decrease in the payor's income; or the recipient has a substantial increase in income. (See discussion below).
Step 3: Determine the Amount of Spousal Maintenance.
While there are many nominal factors in determining the amount of spousal maintenance, it boils down to a determination of need versus ability to pay. [6] If in Step 1, a spouse is determined to have a need for spousal maintenance, but the spouse from whom it is sought has no ability to pay it on top of his or her own expenses, then there will be no spousal maintenance award, because as the saying goes, "you can't squeeze blood out of a turnip."
Sometimes, however, the Court will apply a "share the pain" approach. This can happen where it is clear that a spousal maintenance recipient would suffer hardship without spousal maintenance in a certain amount, but paying that amount would cause the payor to suffer hardship. The Court may then order the parties to "share the pain," by awarding spousal maintenance in an amount that is insufficient for the recipient to meet his or her claimed living expenses, but also leaves the payor with insufficient income to pay his or her own claimed living expenses.
A common complaint I often hear is that the spouse seeking maintenance was a lazy good-for-nothing bum. In practice, however, despite this argument often being made, I've never seen a Court decide spousal maintenance based on a finding that the recipient was lazy and therefore shouldn't be entitled to maintenance, even if the party did nothing but park him/herself on the couch and watch TV for 30 years while the working spouse yelled at him/her every day to quit being a bum and get a job. The prevailing attitude seems to be that since marriage is a partnership, and you didn’t divorce the lazy bum sooner, then you’re stuck with those partnership terms, and the consequences therefrom. Courts don't want to get into a lot of back-and-forth about who did more chores of various kinds.
Regardless of whether the spousal maintenance award is "transitional" or "indefinite," the Court will normally expect all non-disabled parties to eventually be employed, assuming they are of employment age.
II. Modification of Spousal Maintenance.
The only way to legally prevent future modification of spousal maintenance is for both parties to stipulate to a so-called Karon waiver at the time the award is made. [7] This is a great way to avoid having to return to Court to readdress spousal maintenance every time there is a substantial change of circumstances; but it also locks you in, which can bite both ways depending on what the future holds. It is critical to consult an attorney before proposing or agreeing to any Karon waiver.
In the absence of a Karon waiver stating otherwise, spousal maintenance terminates automatically upon the death of either party, or the remarriage of the recipient. [8]
Apart from death or remarriage, any spousal maintenance award that is not limited by a Karon waiver may be terminated, suspended, extended in length, or reduced or increased in amount, upon proof of a substantial change of circumstances to justify the modification. [9] As summarized above, regardless of the duration of a spousal maintenance award, the most common reasons for modification are: A) the payor retires; B) the payor is involuntarily terminated from his employment; C) there is a substantial but involuntary decrease in the payor's income; D) the recipient has a substantial increase in income; or E) cost of living adjustments.
A. Retirement.
The statute which took effect on August 1, 2024 helpfully addresses this common reason for modification of spousal maintenance. [10] Such retirement must be in good faith, and not to unjustifiably limit income. There is now a legal presumption that retirement is in good faith as long as the payor has reached the full Social Security retirement age (typically age 67). [11]. Note that this is not a presumption that retirement before age 67 is in bad faith, as is sometimes argued.
The statute allows a party to bring a motion for modification of spousal maintenance before retiring, as long as a desired date of retirement is specified. This allows a party to obtain a court determination as to the reasonableness of the proposed retirement, before actually retiring. One should consult with an attorney to address a retirement-related modification about six months prior to retirement, ideally.
B. Involuntary Termination from Employment.
Key word: "involuntary." If you quit your job without a very compelling reason, the Court will not modify spousal maintenance based on your lost source of income.
If you receive severance pay, that will be treated as ongoing income for purposes of determining whether or not to modify spousal maintenance.
In the absence of an agreement to the contrary, the Court cannot modify spousal maintenance retroactive to the date of service of a motion to modify it. [12]. Therefore, as soon as one is involuntarily terminated from employment, one should consult with an attorney to formulate a plan for pursuing modification.
C. Involuntary Decrease in Payor's Income.
Key word: "involuntary." If you switch jobs voluntarily, resulting in decreased income, it is highly unlikely that the Court will modify spousal maintenance based upon that choice, without a very compelling rationale other than "my old job was too stressful." If the change is for reasons of physical or mental health, you'd better have a medical or mental health professional be prepared to go on record in support of it.
D. Substantial Increase in Recipient's Income.
A substantial increase in the recipient's income is another common reason for modification of spousal maintenance. This often occurs after a period of higher education or other training or certification of the recipient spouse.
E. Cost of Living Adjustments.
Spousal maintenance is subject to modification without a motion, based on cost of living increases, once every two years, upon proper legal notice. The basic principle is that spousal maintenance will increase by a percentage equal to the cost of living increase, or the percentage increase in the payor's income, whichever is less. [13]. A cost of living notice may be successfully challenged by motion, if one's income doesn't support the COLA. (I once brought and won a case at the Court of Appeals on this issue, thereby confirming this as a matter of law). [14].
Footnotes:
- See Minnesota Statute section 518.552.
- See Minnesota Statute section 518.552, Subdivision 1.
- See Minnesota Statute section 518.552, Subdivision 3(c)(1).
- See Minnesota Statute section 518.552, Subdivision 3(c)(2).
- See Minnesota Statute section 518.552, Subdivision 3(c)(3).
- See Minnesota Statute section 518.552, Subdivision 2.
- Karon v. Karon, 435 N.W.2d 501 (Minn. 1989).
- See Minnesota Statute section 518.552, Subdivision 5a.
- See Minnesota Statute section 518.552, Subdivision 5b.
- See Minnesota Statute section 518.552, Subdivision 7.
- See Minnesota Statute section 518.552, Subdivision 7(d).
- See Minnesota Statute section 518.552, Subdivision 5b(d).
- Minnesota Statute section 518A.75.
- Johnson v. Iber, C6-01-454 (Minn.Ct.App., Nov. 27, 2001).
