FAMILY LAW ost couples want to believe Proposed Legislative Change to the that once their divorce is Modification Statute final they will never have to The Minnesota House of Representatives proposed see or deal with their ex- bill number 1333, if passed into law, would modify Mspouse again. In many cases that simply Minn. Stat. § 518A.39 subd. 3 to include cohabitation is not true. There are several highly as a circumstance that would, if proven, suspend or emotional and complex issues divorced terminate a spousal maintenance award. Specifically, it couples have to cope with and manage provides that “the obligation to pay future maintenance shall be suspended or terminate upon evidence that the long after their divorce is final. Outside of party receiving maintenance cohabitates with another the children, no issue is more emotional individual.” The proposed legislation lists seven factors or contested than spousal maintenance, the court should consider when making a determina- commonly referred to as alimony. tion, including joint financial, shared living expenses, It is easy to understand why spousal recognition of relationship by family and friends, liv- maintenance is such a hot button issue ing arrangements, duration of relationship, enforceable for divorcing couples; each party is at the promise of support from another person, and other rel- opposite end of the spectrum. The high evant evidence. However, a court is barred from finding Cohabitation earning spouse does not want to support an absence of cohabitation solely on the grounds that the ex-spouse and cohabitant maintain separate resi- his/her ex-spouse after the divorce. The and Its dences or do not live together on a full-time basis. lower earning spouse wants to receive a The family law community is divided on this issue. Impact on future benefit from their years of sacrifice Those in favor are concerned the party receiving spousal and labors of love, which is often times goes maintenance will not remarry because they do not want unnoticed. Our legal system is set up to deal to lose their spousal maintenance. Instead of remarriage, Spousal with this issue on a case-by-case basis. the ex-spouse may live with a significant other as if they Maintenance How is a spousal maintenance award are married. In essence forcing an ex-spouse to support modified when cohabitation becomes their ex-spouse’s relationship. Many proponents do not believe the bill is complete and are advocating for a very a factor? By Kathy Newman tight bill that would apply to limited situations. The issue of cohabitation is not new. The Min- Those opposed see many issues even if the bill were to nesota Supreme Court has well established case law be more tightly construed. Current case law already re- surrounding cohabitation arrangements dating back quires district courts to make adequate findings regard- almost 50 years. However, the issue of spousal mainte- ing the economic impact of cohabitation relationships nance modification due to a cohabitation arrangement when modifying maintenance. The proposed legislation is back on the minds of many family law attorneys as only allows for suspension or termination of spousal a result of proposed legislative changes to the modi- maintenance. In other words, contrary to current law, fication statute currently in the Minnesota House of the economic impact of the cohabitation relationship Representatives, H.F. No. 133. would be irrelevant. Spousal Maintenance continues to be one of the most The legislation does not state that a romantic relation- difficult and gray areas family law. Simplistically, the ship is required for cohabitation, potentially allowing a amount and duration of a spousal maintenance award roommate or an adult child to qualify as a cohabitant. is based on a determination that one party needs spou- However, the legislation may imply a romantic rela- sal support in order to meet a marital standard of living tionship is needed because it specifically states that Kathleen M. Newman has and the other party has the ability to pay spousal sup- maintaining a separate residence does not equate to an experience in all aspects of marital port, while meeting their own needs. If the court feels absence of cohabitation. The legislation is also silent re- dissolutions, and has represented that the requesting spouse can become self-supporting garding a specific time duration, just that it is a factor. individuals on complex matters after retraining or with on the job experience, the spou- This opens the door to how time will be measured: days, involving business ownership, sal maintenance award is made for a specific term of weeks, months, years? valuing professional practices years. Spousal maintenance usually terminates on the Finally, opponents ask how evidence is going to be ob- and financial analysis. Kathy sets death of either party or the recipient’s remarriage. tained. Are the obligors going to hire private investigators herself apart through her strong A spousal maintenance award can be modified on a to track how many overnights the ex-spouse’s significant advocacy of custody, support motion of either party pursuant to Minn. Stat. § 518A.39. other stays or snoop around to check whether the signifi- and parenting agreements. A In order for modification to occur, the court must de- cant other is receiving mail at the ex-spouse’s residence, board certified trial advocate termine that, based on the statutory criteria, the existing as was the case in Hopf v. Hopf. More sinister, are joint in family law, a skilled mediator spousal maintenance order is unreasonable and unfair. children going to be asked to spy on their parents? and a certified life coach, Kathy The two most common modification circumstances is also a fellow in the American occur when there has been a substantial change in the Where is the Bill Academy of Matrimonial Lawyers. income of either party or a substantial change in the fi- H.F. No. 1333 has a long way to go before it becomes Among her accolades, she has nancial needs of either party. The Minnesota Supreme law. As of the writing of this article, the bill has not yet been consistently named a Top Court has made it clear that “cohabitation, by itself, ‘is passed through the civil law or public safety committees 40 Super Lawyer for family law insufficient to justify the termination of alimony,’ but and there is not a companion bill in the Minnesota Sen- and one of the Best Lawyers in that a maintenance recipient’s cohabitation should be ate. Therefore, it seems unlikely H.F. No. 1333 will be America in family law. For more considered to the extent that it ‘might improve [the put to a vote during the 2015 legislative session but there information, please visit recipient’s] economic well-being.’” Spencer v. Larson is still several days for this bill to be heard and make its www.kathynewmanlaw.com. quoting Mertens v. Mertens. way to law yet this year.