Text Size   Decrease Font SizeIncrease Font Size
home_slide05.jpg
slogan

Free Consultation

Fill out my online form.
practice_areas_copy

Spousal Maintenance - What is it and how do I get some?

Print

Spousal maintenance, formerly known as alimony, is what one ex-spouse pays to the other for a period of time following the dissolution of their marriage for the support of the ex-spouse. Despite the fact that Family Court Judges must follow the criteria contained in Minn. Stat. § 518.552 when determining whether to award one party spousal maintenance, this issue represents the grayest of all gray areas in the financial area of family law. For child support, we have a calculator; for property division, we start at 50/50 and work from there. For spousal maintenance, we start with the premise that the party asking for spousal maintenance must prove that he or she has the need for it, AND that the other spouse has the ability to pay it. Sounds simple, right? Well, it isn’t.

First, how do we calculate the spouse’s need? Generally speaking, the Court will look at the standard of living established during the marriage to determine what standard of living the spouse should expect to enjoy after the divorce, with the understanding that two households are nearly twice as costly to maintain as one household. The longer the marriage, the more established the standard of living. Be careful, though, because the Court and opposing council will scrutinize a soon-to-be-ex-spouse’s proposed monthly budget, which provides part of the foundation of the argument for “need.” Next, the Court will look at the spouse’s ability to support him or herself with employment or investment income. If the spouse has not worked outside the home during the marriage, a party may hire a professional to conduct a vocational evaluation of the other party to determine potential income available to the non-working spouse. Second, how do we calculate the other spouse’s ability to pay? A Court will scrutinize the potential payor’s monthly reasonable and necessary living expenses in conjunction with the payor’s monthly income to determine if any excess income remains after the payment of the monthly expenses.

So if we determine that one party has a justifiable need and the other party has a reasonable ability to pay, are we done? Not even close. Just glancing at the statute, one sees that the Legislature has laid out eight criteria for Judges to follow in deciding the amount and duration of the award of spousal maintenance. These criteria range from the necessity of education for the spouse to (re)enter the workforce, to the duration of the marriage. Again, unlike in the realm of child support, there is no magic calculator into which we plug the data to receive a set answer. Family lawyers draw from their experience and knowledge to craft the argument for or against an award of spousal maintenance, using the statute and the caselaw as their guide. Be wary of the caselaw, however, as the old saying goes, show me a Court of Appeals or Supreme Court opinion that supports your argument for or against spousal maintenance, and I will show you three that support the opposite argument. For example, the Court of Appeals upheld a permanent spousal maintenance obligation resulting from a seven-year marriage in Schaefer v. Schaefer, strikingly bucking whatever trend toward the “death of spousal maintenance” there may be in this age of two-income households.

Adding to the uncertainty of this already terribly uncertain area of law are the personalities and predilections of the Judges and Referees presiding over the metro area Family Courts. A general citizen of Hennepin County would have no idea if Referee Piper is more generous than Judge Bernhardson when it comes to awarding spousal maintenance. But we do. And that is a critical, albeit not guaranteed, piece of information that can shape the entire negotiating process.

Speaking of the negotiating process, the last quirk to discuss regarding spousal maintenance is the availability of a Karon waiver. The name derives from a 1989 Supreme Court case where the Supremes upheld the parties’ right to stipulate to a waiver of any future modification of their agreement as to spousal maintenance. In short, two parties can craft their own agreement on the duration and amount of spousal maintenance, and then strip the Court of its jurisdiction over the modification of that amount and duration. Even shorter, we can do whatever we want and tell the Court to go away. For good. Often, this is used by one person to “buy out” their obligation to pay spousal maintenance with a lump-sum payment. The availability of this option opens a whole new path of potential pitfalls, which only a skilled family law practitioner navigates with ease and success.

In conclusion, if you have been married for any substantial period of time, and if one spouse has traditionally provided the financial support for the marriage/family, you may be a candidate to receive or pay spousal maintenance to your soon-to-be-ex-spouse. If this is the case, you should consult with us regarding the specifics of your situation.  

Recent Developments in the Case Law

The old adage goes “Show me an appellate case that says one thing regarding spousal maintenance, and I will show you three that say the opposite.” While that may be true, the case law still provides guidance to the district courts.

On December 3, 2009, the Supreme Court decided in Lee v. Lee that pension payments derived from benefits earned by the obligor prior or subsequent to the marriage to the obligee are properly included when calculating the income of the obligor available for spousal maintenance purposes. In layperson’s terms, your receipt of non-marital pension payments will affect the calculation of spousal maintenance at the time of your divorce.

On December 15, 2009, the Court of Appeals affirmed the district court’s award of temporary maintenance of five years, with a reservation of jurisdiction to allow the court to re-visit the issue at the conclusion of five years. Here, the Court of Appeals explicitly approved of the court’s circumvention of the Minn. Stat. § 518.552, subd. 3, which directs the district court to award permanent maintenance “if the court is uncertain that the spouse seeking maintenance can ever become self-supporting.” In essence, instead of awarding permanent maintenance because there was some uncertainty as to when the spouse seeking maintenance would become self-supporting, the court awarded temporary maintenance, and reserved jurisdiction to determine in five years if five years was enough time.

On May 18, 2010, the Court of Appeals held in Rooney v. Rooney that a third-party obligor will be responsible for any attorney fees incurred by the obligee in attempting to enforce the third-party’s obligation to withhold the child support/spousal maintenance, under the Child Support statutes, whether incurred after or before the judgment was entered.

On July 6, 2010, the Court of Appeals held in Dahlin v. Kroening that judgments for unpaid spousal maintenance may be renewed within ten years of any existing judgment, including a renewed judgment, indefinitely. In other words, if you are coming up on ten years since you reduced unpaid spousal maintenance to judgment, it is time to renew that judgment, and you can do so for as long as it takes to collect. Good news for obligees, bad news for obligors.

As you can see, the issue of spousal maintenance is fraught with intricacies and nuance. Only an experienced family law attorney can adequately guide you through this issue to either reach a satisfactory settlement or prepare you for your best chance at trial.

 

Recent News

2019 Family Law Institute - Caselaw Update

After his successful participation in the 2018 Family Law Institute - Caselaw Update, Ryan D. Anderson has been tapped again to serve on the distinguished panel in March 2019.  In ...

Read More

Testimonials

"I cannot say enough great things about William Lubov and his law firm.  My adult daughter was hopelessly lost in the mental health system in MN.  She was not being properly cared for and the state was in the process of appointing a "guardian."  I am absolutely convinced had Mr. Lubov not helped me that my duaghter would have spent the rest of her life in mental hospitals under the guidance of a state-appointed guardian.  Mr. Lubov was able to get her released from "civil commitment" and I was made her guardian.  My daughter is now home with me and ...

Contact Us

map

Lubov Anderson, LLC
7500 Olson Memorial Highway
Suite #180
Golden Valley, MN 55427
Phone: (763) 529-4200

©2011 Lubov Anderson, LLC
Disclaimer
Law Firm Website Design by The Modern Firm