OMG – Circumstances have changed — how can my Minnesota spousal maintenance be changed?

A. You need to have a Basis to Modify – it is required

In 2024, Subdivision 5b was added to section 518.552 to clarify the requirements for a modification of spousal maintenance (separate from Minn. Stat. § 518A.39, subd. 2). Maintenance is modifiable if there has been:

1. a substantial change of circumstances (as to gross income, need, or tax laws);

2. that renders the existing order unreasonable and unfair.

B. Be Clear on these other concerns for SM modifications

1. Upon a motion to modify, the court shall apply the factors for an award of maintenance under subdivisions 1 to 3 that exist at the time of the motion in addition to all other relevant factors.

2. A modification (including interest) may be made retroactive to the date that a motion to modify was served.

3. The court need not hold an evidentiary hearing on a motion to modify maintenance.

C. Some of the Customary Bases to Modify Spousal Maintenance

1. Retirement as a Basis to Modify Spousal Maintenance

Minn. Stat. § 518.552, Subd. 7 provides:

a) If a party retires, spousal maintenance may be modified. The modification of maintenance may consist of a reduction, suspension, reservation, or termination of maintenance.

b) In determining if maintenance should be modified due to a party’s retirement, the court shall consider:

1. whether the retirement is in good faith or is an unjustifiable self-limitation of income;

2. whether the party has attained the age to receive the party’s full retirement benefits under section 216 of the Social Security Act, United States Code, title 42, section 416, or the customary age for retirement in the party’s occupation;

3. whether a party has reasonably and prudently managed the party’s assets since the dissolution of the marriage; and

4. the financial resources available to both parties.

c) It is presumed that when a party has attained the age to receive the party’s full retirement benefits under section 216 of the Social Security Act, United States Code, title 42, section 416, or the customary age for retirement in the party’s occupation, the party will use both income and assets to meet the party’s needs.

d) A party must not be presumed to have retired in bad faith or to have unjustifiably self-limited the party’s income in the event that the party’s retirement is occurring on or after the date the party attains the age to receive full retirement benefits under section 216 of the Social Security Act, United States Code, title 42, section 416, or the customary age for retirement in the party’s occupation.

e) A motion to modify maintenance due to retirement may be brought before a party actually retires provided that the moving party specifies the date by which the party’s retirement will occur. The court may then make the modification effective as of the actual date of retirement.

Before Subdivision 7 was codified in 2024, we relied on the following caselaw for retirement modifications:

In re Marriage of Richards, 472 N.W.2d 162, 165 (Minn. Ct. App. 1991) sets forth factors the court should consider in determining whether retirement was in good faith and warrants modification: payor’s health and employment history; availability of, and expectations regarding, early retirement at time of divorce; the prevailing managerial policies and economic conditions at the time of retirement; and whatever subjective reasons the payor may offer.

Hemmingsen v. Hemmingsen, 767 N.W.2d 711, 717 (Minn. Ct. App. 2009) held that retiring at a “normal or customary retirement age weighs strongly in favor of a finding of good-faith retirement but is not conclusive of good faith.”

In Lee v. Lee, 775 N.W.2d 631 (Minn. 2009), the Supreme Court held that the payor’s nonmarital pension benefits can be considered in the payment of spousal maintenance after the payor’s retirement. The payor in Lee retired and received monthly pension benefits that were partially earned before the marriage, partially earned during the marriage and partially earned after the divorce. The marital portion was divided equally between the parties in the judgment and decree of dissolution. The marital portion was excluded in the award, since it would have constituted a “double-dip” for the recipient to receive payment from a marital asset that was already divided in the divorce.

2.  Cohabitation as a Basis to Modify Spousal Maintenance

a) Minn. Stat. § 518.552, Subd. 6 provides: Spousal maintenance may be modified pursuant to subdivision 5b, based on the cohabitation by the maintenance recipient with another adult following dissolution of the marriage. The modification may consist of a reduction, suspension, reservation, or termination of maintenance. In determining if maintenance should be modified due to cohabitation, the court shall consider:

1. whether the recipient would marry the cohabitant but for the maintenance award;

2. the economic benefit the recipient derives from the cohabitation;

3. the length of the cohabitation and the likely future duration of the cohabitation; and

4. the economic impact on the recipient if maintenance is modified and the cohabitation ends.

b) Some of the factors are highly subjective and difficult to establish with concrete evidence. This has proven to be a very high standard.

c) Cohabiting is not like remarriage because cohabitation alone is not enough to modify. Helms v. Helms, No. A17-0854, 2017 WL 5661591 (Minn. Ct. App. 2017) (“The plain language of Minn. Stat. § 518.552, subd. 6 requires more than cohabitation alone.”). Still must show that the present award is unreasonable and unfair.

d) Sinda v. Sinda, No. A19-1291, 2020 WL 4577462 (Minn. Ct. App. 2020) – Statutory factors do not create rebuttable presumption in favor of modification based on cohabitation, rather the factors must be considered in determining whether the existing maintenance obligation is unreasonable and unfair.

e) Other provisions in the statute:

1. This does not include cohabiting with family members.

2. The parties could have agreed in writing with a Karon waiver that cohabiting would not be a basis for modification.

3. A motion on this basis cannot be made within 1 year after entry of the decree (unless agreed otherwise or extreme hardship).

3. Health Conditions of Recipient as a Basis to Modify Spousal Maintenance

a) Backman v. Backman, 990 N.W. 2d 478 (Minn. Ct. App. 2023). If a recipient spouse is awarded indefinite maintenance due to a health condition that limits or prevents them from earning income through employment, that spouse’s later improved health can be a basis for modification.

b) The decree omitted the express requirement that the wife increase her earning capacity by obtaining education or vocational training and did not preclude imputation of potential income to her when calculating her gross income for purposes of the husband’s future motion to modify indefinite spousal maintenance award.

c) Husband’s motion did not ask the district court to impute potential income to wife on the ground that she had failed to obtain education or vocational training but rather that her health had improved since the time of the dissolution.

d) District court had not engaged in the analysis required by the rule governing physical and mental examinations but instead denied husband’s motion for vocational evaluation of wife based on erroneous finding that it was precluded from imputing potential income to wife. Minn. R. Civ. P. 35.01. Remanded to district court to consider whether recipient’s physical and mental condition was in controversy and whether payor made a showing of good cause for an examination of wife, in order to determine whether a vocational evaluation of wife was warranted.