Statutory spousal maintenance guidelines, i.e. alimony, may be coming to Minnesota at long last.  For years, Minnesota statutes have provided guidelines for child support, but not for spousal maintenance.  That is to say, the statutes provide an actual formula for calculating child support, based upon income figures, number of children, and parenting schedules – a presumptive calculation that may deviated from upwards or downwards based upon the parties’ agreement or the family court’s judgment call.  Having guidelines provides a higher level of certainty and predictability in marriage dissolution cases involving alimony, not to mention consistency across different courts.  Without guidelines, you could take the same fact situation to ten different judges and get ten different determinations.

The statutes have not previously provided guidelines for spousal maintenance.  Instead, there are factors for the court to consider in making a spousal maintenance determination, including the length of the marriage, income history, and the parties’ respective career circumstances.  But there are no figures, or presumptions, to provide a range of likely possible outcomes.

In recent months, a committee from the Minnesota chapter of the American Academy of Matrimonial Lawyers (AAML) has developed a draft of potential legislation.  One focus of the reform is to address how retirement factors into the expiration of spousal maintenance obligations.  The current law presumes that there will be no spousal maintenance; or that there will be spousal maintenance for a specific period of time; or that there will be “permanent maintenance” which continues until one of the parties dies, the recipient remarries, or some other significant change of circumstances.  A common change of circumstances, other than death or remarriage, is retirement.  Yet the current law does not address retirement with any specificity.

The AAML draft legislation will be presented to the group Minnesota Alimony Reform, which was formed in 2016 at the behest of the Minnesota State Bar Association.  From there, the legislation would potentially be picked up for consideration by legislators eager to respond to the call for spousal maintenance guidelines.

I have a friend who has first-hand experience with divorce, spousal maintenance, and how the issue of spousal maintenance is determined as part of a divorce process.  In the wake of his own experience, he questions the wisdom of having no spousal maintenance guidelines in Minnesota’s family law statutes.

Many states have spousal maintenance guidelines or have pending legislation for the same, including Massachusetts, Kansas, Texas, New Jersey, Connecticut, Florida, Virginia, Wisconsin and Oregon. The advantage of guidelines is the greater certainty of basing the amount of spousal maintenance on a percentage of the difference in parties’ incomes, and basing duration on the length of the marriage.

A standard spousal maintenance formula would be similar to how child support is calculated under current Minnesota law.  The current method of determining spousal maintenance allows such a wide variation depending on the opinion of the assigned family court judge and the negotiating skills of the parties and/or attorneys involved.  Having a standard formula sets realistic expectations for spousal maintenance recipients and reduces the amount of litigation required to bring a divorce case to resolution.

One other related issue is the alimony recipient’s cohabitation with another adult.  Under Minnesota law, spousal maintenance typically ends when the alimony recipient remarries, but not when the alimony recipient lives with someone else but does not marry them.

Oftentimes, family law legislation favors certain constituents, and disfavors others.  For example, if there were legislation that eliminated spousal maintenance, it would favor litigants who face the possibility of paying spousal maintenance, and disfavor potential recipients.  However, spousal maintenance guidelines would provide benefits to essentially all litigants, regardless of whether they stand to pay or to receive spousal maintenance.

The Minnesota alimony statute lists factors for the family court to consider in deciding a case of spousal maintenance.  However, the statute directs the court to consider “all relevant factors” which may include factors other than those listed.  The statute also directs the court to make the decision “without regard to marital misconduct.”  That is a reference to the no-fault aspect of Minnesota divorce law, in which one spouse cannot be treated less kindly for misconduct such as adultery and domestic abuse.

The spousal maintenance factors listed in the statutes are:

• The financial resources of the party seeking maintenance, including marital property apportioned to the party, and the party’s ability to meet needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
• The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, and the probability, given the party’s age and skills, of completing education or training and becoming fully or partially self-supporting;
• The standard of living established during the marriage;
• The duration of the marriage and, in the case of a homemaker, the length of absence from employment and the extent to which any education, skills, or experience have become outmoded and earning capacity has become permanently diminished;
• The loss of earnings, seniority, retirement benefits, and other employment opportunities forgone by the spouse seeking spousal maintenance;
• The age, and the physical and emotional condition of the spouse seeking maintenance;
• The ability of the spouse from whom maintenance is sought to meet needs while meeting those of the spouse seeking maintenance; and
• The contribution of each party in the acquisition, preservation, depreciation, or appreciation in the amount or value of the marital property, as well as the contribution of a spouse as a homemaker or in furtherance of the other party’s employment or business.

In family court, there are cases in which the court grants spousal maintenance (i.e., alimony), and there are cases in which the court denies spousal maintenance.  There are also cases in which the court RESERVES spousal maintenance.  When the court reserves spousal maintenance, there is no obligation to pay spousal maintenance, now or in the immediate future, but there COULD BE the obligation to pay maintenance in the future.  

As an example, in Case A, the court finds that one spouse in a divorce is not self-supporting, and the court awards spousal maintenance to the dependent spouse.  In Case B, the court finds that both spouses are self-supporting, and the court refuses to award maintenance to either spouse.  In Case C, the court finds that one of the spouses is not self-supporting, but the other spouse is currently unemployed, so the court reserves maintenance.  This reflects the fact that the spouse who would otherwise pay maintenance does not currently have income to pay maintenance, but that the court believes that, once re-employed, that spouse will have the ability to pay maintenance.  The family court has reserved jurisdiction over the issue, so that in the future, the court may consider whether the facts and circumstances warrant a maintenance obligation.