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.

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.