Editorial on Spousal Maintenance Claims

A colleague of mine Dana McKenzie recently shared her thoughts about spousal maintenance in Minnesota divorces. I agree with her editorial and couldn't analyze this issue better. If you have questions or concerns about your case please feel free to call or email me about it or address your queries to Dana at 651-222-6341. She wrote: About 50% of my practice is advocate work and about 50% is neutral work.  Wearing each hat, I see one issue over and over—parties with what I would describe as “unrealistic” views as to their position regarding spousal maintenance.  I’m not making up any of these cases and they all had lawyers:

Case #1--Husband and Wife married 28 days before divorce filed.  (Yes—that’s DAYS, not years, months or weeks.)  Wife sought permanent spousal maintenance.

Case #2--Husband and Wife married over 25 years.  Wife is in her mid-50s.  Husband earns over $100,000 and Wife earns less than $35,000.  Husband advocates three years of spousal support.

Case #3--Then there are the tough “gap” cases:  One spouse earns over $100,000; other earns less than $30,000—ten to 18 year marriage.  “Needy Spouse” has an education and is in his/her mid-40s.  (I’ve seen many cases like this recently.  Certainly maintenance is a risk, but duration is often the issue and the case law is all over the board...)

The common factor in many of these cases is that a party had a very unrealistic view of  the possibility/risk of spousal support and the lawyer apparently had not fully educated the client on the risk or possibility of maintenance.  The tough thing about being a professional is telling people bad news—things they don’t want to hear.  Physicians have to do this, clergy has to do this, accountants have to do this and lawyers have to do this.  We’re not doing our jobs if we guarantee the wife with the 28 day marriage that she will get spousal maintenance or if we tell the spouse earning over $200K that he doesn’t have to worry about the possibility of permanent maintenance.  I won’t lie to you—it’s no fun to tell a high earner in a long term marriage that there is a possibility, even a strong possibility, of permanent maintenance. It’s not fun to tell someone who planned to be a homemaker that she will have to work to her capabilities and probably work full time.  It’s not fun to tell somewhat that their dream of being a personal trainer and earning $20,000 will probably not be found to be reasonable when the person worked as an accountant and earned $40,000 a few years ago.

The thing is that we owe our clients our best advice, and not just what they want to hear.  We have a duty to know what our clients want and to try to advocate a solution that will satisfy those wants, but not in the face of common sense or a huge body of law to the contrary.  I realize these are hard cases, especially those hard “gap“ cases with the “needy” spouse being under 50 and the marriage being under 15 years, but a huge earnings disparity.  No one can guarantee a result, but we do owe a duty to fairly and honestly discuss the risks the client facing in his or her position.  The last thing we should do is simply blindly agree with our clients without carefully educating the client on all the possibilities.  You can’t guarantee a Wife she will “never” have to work if she is 40 years old and has been absent from the job market for less than 10 years—the law probably won’t back up that position in many cases.

We don’t want to be facing a complaint because we didn’t fairly discuss the income disparity, the statutory presumption of a permanent label if there is uncertainty (with the ability to modify should circumstances change) and all the other relevant factors a court will have to consider.  (And, note—we also have to make it clear that maintenance laws are not gender specific.  Husbands can be awarded spousal support and Wifes can be ordered to pay.  I can’t tell you how often I see cases where, if you simply switched the gender of the parties, there is no doubt as to the outcome of the maintenance issue.  For some reason, there are a few folks who firmly believe that a husband will not be awarded maintenance by a court...)  The bottom line is that we owe our clients good advice, including the advice they really don’t want to hear.  You can say it gently, but you have to say it... End of Editorial.