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.

Custody versus Parenting Time

Many people are going to read the title of this blog entry and wonder:  what do you mean custody versus parenting time?  I want both “custody” and “parenting time”.  I phrase it like this to point out the contradiction that parent-litigants face in the choice of the right words on the decree/paternity order versus more time with their children. Legal custody can be assigned solely to either parent or jointly to both parents. It just encompasses with the authority to make decisions for the minor child.  It is often times does not receive much attention by parents as they prioritize physical custody.

Physical custody is defined by the Minnesota Legislature as the 'routine daily care and control of the minor child'.  Some people subscribe to the belief that the distinction between the two (2) types of custody was just a chauvinistic attempt to give fathers greater rights.  The historical belief is that in the 1970's and 1980’s the male dominated State Legislature had received enough complaints that mothers were always getting “custody” of the children.

To remedy the complaints the Legislature created two (2) types of custody:  legal and physical custody.  In doing so they gave a great definition to legal custody and they lazily assigned physical custody with this “routine and daily care and control” definition.  Contrary to the experience of every sole physical custody order that has been entered since then, certainly no one expects a mother with sole physical custody to be making sure that the children are brushing their teeth and going to bed on time and otherwise 'caring' for them when they are at their father’s house for a weekend.  As such the definition is counter intuitive.

Nevertheless getting physical custody is often times what divorcing parties are primarily concerned with.  Yet they often times do so to the neglect parenting time. Parenting time is the schedule that is set forth as to when the children should be spending time with each parent.  It is often times segmented by weekdays, weekends, holidays, summer breaks, and other key days (such as birthdays).

Two recent cases in the Minnesota Court Appeals demonstrates the counter intuitive nature of the custody designation.  One is a father who is appealing in the award sole physical custody to the mother even though he has 50% of the parenting time.  The second is a mother appealing the Court’s award of joint physical custody to both parents even though the father was only granted 10% of the overnights each month as parenting time. In this circumstance, the parties are disregarding the time they were awarded with their children in appealing the custody label ordered by the District Court.

There are some valid arguments that other attorneys have in regards to the legal effects of joint physical versus sole physical custody including but not limited to the factual grounds necessary to modify either one.  But there are reciprocally other arguments to suggest that their concerns are moot in light of the likelihood that the facts that require a modification of custody are going to require entirely a new parenting time schedule with it too.  Nevertheless the facts of each given case are going to govern whether or not sole physical custody is going to need to be sought.  Further it is for each client to sit down with their attorney to review the entire case and determine what legal rights are most important as it relates to their children’s best interests.

Consider this family law dilemma:

Husband and wife separate at the same time they have their house foreclosed upon.  They continue to share the children with each spending equal time with the children. Though each parent has now moved into a home in a school district different that the children’s current district, the children are kept in the same school for the rest of that schoolyear.  By mid-summer the parties have established their own households with contacts with their extended family, significant others, with differing neighborhoods and in different school districts.  Even if they agree upon joint physical custody, which parent should be deemed to host the primary residence of the children for the sake of enrolling them in that parent’s school district?  Further remember that though the parties have been sharing the children they did get divorced for a reason, which includes poor communication and the inability to agree upon issues amicably.  It is cases like this one that I have been able to represent one of the parties and assistant them in not only attempting to find an agreeable resolution but also seeking a favorable Court Order from a judge that will serve my client and the client’s children’s interests.

Spousal Maintenance

Sometime ago I represented a husband in a divorce action.  The client came to me some time after being represented by an attorney. Though the attorney was experienced and respected, he did not have confidence regarding her aggressiveness and zeal in pursuing this case.  Upon meeting, the client and I clicked immediately and I was retained to take on his case.  It was a twenty (20) year marriage wherein both parties worked, but the wife made in the mid-five figures and the husband was well over six figures.  Thus in addition to property division the biggest concern for my client was spousal maintenance.   

Known as alimony in other states, spousal maintenance is the continuing obligation to support one’s spouse after a divorce.  Sometimes it is for a limited period of time to allow the spouse to rehabilitate their careers: such as either agreed to or awarded by the court upon the belief that the recipient spouse sacrifice their careers for the marriage and it should be given the opportunity to rehabilitate those careers to where they reasonably would have been had they not got married.  Other times spousal maintenance is awarded for a long period of time (sometimes until 65 and sometimes beyond) under the argument that the recipient spouse during the marriage had enjoyed a particularly high standard of living that they cannot continue to enjoy after the divorce.  The grounds here is that the support of both spouses allow the parties to work together to achieve that higher standard of living and therefore the recipient spouse is due a monthly award from the contributing spouse to maintain that standard of living as much as possible.  In this case, my client was at risk for having to not only pay out a large amount of money each month to his soon to be ex-wife but also for a long period of time.  Though there were other factors that contributed to it, my client and I prepared the file as best as we could.  We examined his bare necessity expenses as well as what she could possibly argue.  Further we had to calculate what she was possible of earning herself in the future.

At the pretrial hearing -- the four (4) hour time slot scheduled by the Court prior to trial to encourage the parties to settle their differences -- we held a series of meetings with the opposing counsel and with each other, going back and forth.  When all was said and done we had negotiated a resolution that allowed my client to pay considerably less each month than what we had anticipated and for merely twenty-four (24) more months after tallying the property division and the other issues. It was a resolution with which my client was very happy.

Further the parties have been divorced for more than three (3) years now and no other issues have arisen.  Though there are some attorneys that just seek best possible resolution for a client at the conclusion of their divorce without regard for the future, I always try to keep in mind the long-term effect for the client.  It makes no sense to do a quick and easy for a client on unsound terms if they are just end up spending the next several years with stress and strife and thousands more in dollars of attorneys fees trying to fix what should have been done right the first time.  In this case I am glad that everything has worked out for my client and he has not needed my legal services again.

Federal Minimum Wage Increase & Your Child Support

Many of you know that the child support laws in Minnesota were changed several years ago to take into consideration both parties’ income.  What few people may appreciate is the fact that Minnesota Statute Chapter 518A has specific treatment for unemployed & underemployed individuals.  The current law states that for people who have no readily identified income, for which it cannot be argued otherwise, shall be imputed to have income equal to 150% of the State’s minimum wage (a dollar more than the federal minimum wage).  With the rise in federal minimum wage that went into effect July 25, 2009 (it went up $0.70 per hour), it will trickle down to the figures that we use to impute income for unemployed parents, underemployed parents, and parents whose income cannot be easily ascertained otherwise.  If you think this change is going to affect your child support, either on the defense or raising the amount of child support you should be receiving, feel free to give us a call to talk about it.