Tuesday, June 27th, 2017
Spousal maintenance (alimony) is one area of family law for an outsider that seems the most arbitrary. From an attorney’s perspective, it might not be viewed so much as arbitrary, as there are some very set guidelines. However, it is an area that can be particularly subjective in that no two fact patterns of a divorce are the same. This is why it’s important to seek legal counsel of someone who will put your case in the best light.
In spousal maintenance, there are two broad questions. First, should there be an award of spousal maintenance where one party must pay another for living expenses? Second, if there is an award of spousal maintenances will it be temporary for a set duration or will it be permanent, the later as it sounds possibly going on until one party dies? This is an area that in the long run can really mean lots and lots of money—all the more reason to seek legal counsel.
Whether to award spousal maintenance begins with two questions:
1) Does the obligee (individual seeking support) need assistance in meeting a gap on financial resources necessary to continue their prior standard of living; and
2) Does the obligor (individual being asked to pay) have the ability to meet both their own needs and bridge the gap presented by the obligee’s request?
In looking at needs and ability, the Court will look to what case the parties make as to their legitimate expenses. Here, again, it’s helpful for you to have an attorney help make your facts stand out.
A law firm’s paralegal is extremely important in the process as they will be compiling what can be large amounts of supporting documents. Our office’s paralegal, known as ‘NASCAR Nicole’ for her NASCAR passion, patiently works with clients in document organization. We’ve been told many times how reassuring the process is to have someone sympathetic to the stress of divorce.
Once the need and ability to pay are demonstrated, and an amount set, the question will be whether it is temporary or permanent. Temporary maintenance is set where the Court believes in a reasonably determinable period of time, the obligee should have the wherewithal to get on their own feet. Broadly speaking, temporary maintenance is common where the obligee is relatively young, in good health and with employable skills, and the marriage is not of a long duration. Again, this is broadly speaking. Minnesota Statute §518.552, Subd. 2, refers to these guidelines:
Subd. 2. Amount; duration. The maintenance order shall be in amounts and for periods of time, either temporary or permanent, as the court deems just, without regard to marital misconduct, and after considering all relevant factors including:
(a) the financial resources of the party seeking maintenance, including marital property apportioned to the party, and the party’s ability to meet needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
(b) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, and the probability, given the party’s age and skills, of completing education or training and becoming fully or partially self-supporting;
(c) the standard of living established during the marriage;
(d) the duration of the marriage and, in the case of a homemaker, the length of absence from employment and the extent to which any education, skills, or experience have become outmoded and earning capacity has become permanently diminished;
(e) the loss of earnings, seniority, retirement benefits, and other employment opportunities forgone by the spouse seeking spousal maintenance;
(f) the age, and the physical and emotional condition of the spouse seeking maintenance;
(g) the ability of the spouse from whom maintenance is sought to meet needs while meeting those of the spouse seeking maintenance; and
(h) the contribution of each party in the acquisition, preservation, depreciation, or appreciation in the amount or value of the marital property, as well as the contribution of a spouse as a homemaker or in furtherance of the other party’s employment or business.
Where the marriage has been a long marriage, a spouse has been primarily a ‘homemaker’ sacrificing his/her career for child(ren) raising, or is of poor health or lacks educational/vocational skills, permanent maintenance may be likely. Again, this is all broadly speaking. Minnesota Statutes provides that where the Court doesn’t feel it has enough facts to make a sound determination, it will default to permanent maintenance. (Minn. Stat. §528.552, Subd. 3). An attorney will help clarify your position.
If your case involves the question of spousal maintenance, having a strong legal advocate in your case is important. Contact or call our office today at 218 722 5809
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