When and How Can a Spousal Maintenance Award be Modified?

Posted on July 10, 2010 by Jason Brown

Once an award of spousal maintenance (alimony) is ordered by the court, it may be modified if certain criteria are met. In order to modify and award of alimony, the party seeking modification obtains a court date and serves and files motion papers. Keep in mind that the modification, if granted, is usually only retroactive to the date that the motion papers are served on the other side. For that reason, it is important to obtain legal assistance at the earliest possible time, rather than allowing arrears to build up, if you are unable to afford the maintenance obligation as ordered.

Any of the following provide a basis for the judge to modify an existing alimony order:

  • Substantially increased or decreased earnings of either party;
  • Substantially increased or decreased needs of either party;
  • Receipt of public assistance benefits;
  • Change in cost of living, as measured by the federal government; and
  • Significant medical expenses incurred on behalf of a child that are not otherwise addressed in the judgment and decree.

Additional factors for consideration include the initial standards the court addresses in awarding spousal maintenance:

  • Financial need of each party relative to their income;
  • The ability of one party to pay the other spousal support;
  • The length of marriage;
  • The mental and physical health of the parties;
  • The role each party played during the marriage, in terms of working or raising children;
  • Financial assets available to each party to supplement their income;
  • The educational background of each party; and
  • The age of each party.

While the issues involved in modifying spousal maintenance are usually addressed in motion papers alone (such as affidavits and exhibits), some judges will order an evidentiary hearing (trial) to determine whether the request for modification is appropriate.

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Court of Appeals Affirms Reduction, Not Elimination, of Spousal Maintenance Obligation Following Good Faith Retirement

Posted on March 7, 2009 by Jason Brown

In an opinion filed March 3, 2009, the Minnesota Court of Appeals affirmed a Dakota County District Court's reduction, not elimination, of husband's spousal maintenance obligation following retirement. Judge Halbrooks wrote, without dissent, in Wisness v. Wisness.

The Wisness' 30-year marriage was dissolved by a stipulated judgment and decree on September 17, 1993. The stipulated judgment and decree resolved the vast majority of the issues in their case, including alimony. As a result of the parties' agreement, husband was ordered to pay respondent $1,450 per month in permanent spousal maintenance.

Three years later, at age 56, husband had an opportunity to take early retirement from his employer. He moved the district court to terminate or reduce his spousal maintenance obligation. The retirement package that he was offered provided for a 50% reduction in income until he turned 62. The district court denied husband's motion, stating that while appellant could take advantage of the retirement opportunity, he could not avoid his obligation to pay support by voluntarily reducing his income. Despite that decision, husband opted for early retirement.

In 2007, then 67, husband moved the district court to eliminate his spousal maintenance obligation. He had remarried and was then working part-time as a school-bus driver, earning annual wages of $3,271 and $1,481 per month in social-security and Medicare payments. Despite a finding that husband retired in good faith, the district court declined to fully eliminate his alimony obligation:

It is fair and equitable to reduce [appellant’s] spousal maintenance obligation by approximately 50%, in light of both parties[’] present ability to meet their ongoing living expenses. Both parties will have to curtail their expenses or dip into their marital property to make up for the shortfall they each will sustain as a result of this modification of spousal maintenance.

Husband appealed. The Minnesota Court of Appeals affirmed, opining  that findings of fact concerning spousal maintenance must be upheld unless they are "clearly erroneous." The court found that the district court considered the statutory factors of wife's financial resources relative to her ongoing expenses. Relying heavily on the "standard of living" element of Minnesota's maintenance statute, Judge Halbrooks determined that wife's projected rent, medication expenses and health insurance expenses were reasonable.

Husband argued that he should not have to pay spousal maintenance because his ongoing monthly expenses were $183 less than his monthly gross (pre-tax) income. However, the court affirmed that, despite the shortfall, a mere reduction (as opposed to elimination) was appropriate and that the district court gave weight to the fact that both parties will have to curtail expenses or dip into their marital property in order to satisfy their monthly expenses.

At the end of the day, Wisness makes it clear that a maintenance obligor who retires in good faith may still be obligated to pay spousal maintenance to their ex. The safe bet for an obligor who has agreed to pay permanent spousal maintenance? Establish a specific timetable for termination of the obligation, if possible.

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