The law is constantly evolving as time passes, but that does not always mean instant gratification for everyone who may be affected by the change. On May 19, 2016 Minnesota Governor, Mark Dayton, signed a law which substantially changed how the issue of spousal maintenance is dealt with in Minnesota. But why is this old news important today?
Specifically, the new law, codified in Minnesota Statute Section 518.522, now allows for spousal maintenance to be modified, suspended, or even terminated based on cohabitation of the person receiving spousal support. The previous law only allowed for termination of maintenance based on remarriage or death of one of the parties.
There are several factors that judges may consider when determining whether to modify spousal maintenance when an ex-spouse is “shacking up.” The first factor is “whether the obligee would marry the cohabitant but for the maintenance award.” Another factor examines how long the cohabitation has been taking place and how long it will likely continue into the future. The final two factors look at the economic situation of the receiving spouse, and allows the Court to consider the economic benefit to the maintenance recipient and the economic impact on the maintenance recipient if the Court modifies maintenance and then the cohabitation ends.
It is important to acknowledge that the legislative intent behind this law was in good faith. Legislators believed it would eliminate the loop hole which once allowed many individuals to take advantage of the previous law. Without the addition of the cohabitation provision to the statute, spousal maintenance recipients could continue receiving spousal maintenance while living with a significant other by simply avoiding remarriage.
Although this new piece of legislation became effective in August of 2016, it continues to be a topic of hot debate today for family law attorneys as well as those obligated to pay, or those receiving, spousal maintenance. Many supporting the new cohabitation addition to Minnesota’s spousal maintenance legislation believed the law was also easy in its application. Even co-author and Minnesota representative Peggy Scott claimed the new law was “just so common sense.” But is that really the truth? Not at all. While the cohabitation addition does make sense in the 21st century world we live in, the application of the new law to real life cases continues to be far from common sense.
While the factors set forth in the law give the Court some guidance, the Court has significant discretion on how to interpret and apply the factors. There is no guidance on how much weight the Court must give any of the factors. For example, there is no specific amount of time for which a couple must be living together in order for a judge to determine the couple is in fact cohabitating within the meaning of the law.
This ambiguity and discretion of the Court is not new in family law cases. Because every family situation differs, Judge’s must have the authority to apply the law to each particular individual situation. However, Judge’s typically have well-settled case law to guide their interpretation of the law. With a new law such as the cohabitation law, Judges and family law attorneys are anxiously awaiting the first case dealing with the issue of spousal maintenance and cohabitation to be appealed and decided by Minnesota’s higher courts. This would set precedent, give district court judges more guidance, and result in consistent rulings on the issue of cohabitation. Unfortunately, no case law has been developed on this issue since it became effective in August 2016.
Along with the lack of guidance and dearth of case law to guide the District Court, there is also an evidentiary issue. Many are confused at what type of evidence needs to be presented in order to show that cohabitation may be taking place. The statute is silent on what type of evidence is appropriate. Living in a country which is obsessed with social media, would an Instagram post, Twitter tweet, or Facebook change in relationship status be enough? I wish I had the answer. The theme to this post can be summed up in one word: unknown.
So does all of this mean that modification or termination of your spousal maintenance obligation based on cohabitation is impossible? Absolutely not. One way you could prevent this issue from even coming up in the future is by putting an agreement in your divorce decree that spousal terminates upon cohabitation. However, your ex-spouse would have to fully agree for this to be an option, which may very well prove to be difficult. The second option is getting the advice of, or hiring, an experienced family law attorney. A mindful attorney will help you weigh the pros and cons of your case based on the specific facts. Until this issue is more settled, knowing the risks, strengths, and weaknesses of your case is vital.
1. Startribune.com, “In Minnesota, a ‘common sense’ change in alimony,” Gail Rosenblum, May 22, 2016.
2. Startribune.com, “Minnesota’s alimony bill in a nutshell,” Gail Rosenblum, May 20, 2016.