Spousal Maintenance: Starting Now Until Retirement?

Part III: Retirement Savings Plan Not Followed

Suppose that in yet a different divorce*, a spousal maintenance award is granted stating that: “Upon a motion for modification of spousal maintenance, each party shall be held to a “prudent investor” standard. Neither party is expected to withdraw from his or her retirement assets unless it is for an emergency or as a part of retirement.

In this hypothetical suppose that the wife in this scenario was granted $8,000 per month in spousal maintenance. However in the following decade, she buys a cabin, takes numerous elaborate vacations and pays for her son’s entire college education. These expenditures almost entirely deplete her savings and she now relies heavily on the maintenance. However, her ex-husband now plans to retire and hopes to modify his maintenance obligation.

Will he be permitted to do that?

In the Fink case, the Court of Appeals held that courts are statutorily required to consider the investment income a spousal maintenance obligee will earn from the assets that he/she received as part of the dissolution proceeding.

In the Maxwell case, the trial court found that the wife “had depleted and diverted income-producing assets,” and as a result, instead of actually taking stock of her monthly income in the amount of $1,564 that those assets would have generated, the court imputed that same monthly income to her. Relying on wife’s imputed income, the trial court determined that wife did not have a need for spousal maintenance and terminated husband’s obligation. In reaching this conclusion, the trial court found that wife had “an obligation to utilize her assets prudently,” and questioned a number of wife’s financial decisions. Specifically, the trial court challenged wife’s decision to purchase a new lake cabin, refinance her home, and withdraw $273,600 from her IRA accounts to pay for taxes, vacations and other expenses. While wife argued that these expenses were “reasonable,” the trial court disagreed. The trial court did not believe wife’s claim that spousal maintenance “was insufficient to pay taxes and other expenses.” Moreover, the trial court found that wife’s “spending had outpaced her income and that she had exceeded the marital standard of living by purchasing the cabin.” The Court of Appeals upheld the award.


Courts must consider an obligee’s investment income at the time of an initial determination of spousal maintenance and upon a motion for modification of maintenance. Spousal maintenance obligee’s are expected to prudently invest the assets awarded to them in the dissolution. The Court of Appeals has analyzed the “reasonableness” of an obligee’s investment decisions in the context of the marital standard of living.

*Click here to see the first part of this Spousal Maintenance: Starting Now until Retirement? series.