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Modification of Spousal Support

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Minn. Stat 518A.39 governs:

What may be modified?

A motion may be file to modify the amount ($) of support or duration of maintenance.

Spousal support is also subject to COLA. Therefore, there could be motions related to stopping the COLA.

What needs to be established to modify?

A district court may modify an existing spousal-maintenance order if the party seeking modification “makes a showing of a substantial change in circumstances that makes the existing award unreasonable and unfair.” Madden v. Madden, 923 N.W.2d 688, 696 (Minn. App. 2019). Whether there has been a substantial change of circumstances since the previous order is a threshold question in a motion to modify maintenance, and the circumstances that existed at the time of the original decree serve as “the baseline circumstances against which claims of substantial change are evaluated.” Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997).

You must show one or more of the following circumstances make the terms of the existing order unreasonable and unfair:

(1) substantially increased or decreased gross income of an obligor or obligee;

(2) substantially increased or decreased need of an obligor or obligee; or

(3) substantial changes in the federal or state tax laws that affect spousal maintenance.

Can a client ask the court to order a modification retroactively?

Yes – but the Court can’t go back any further than:

  1. Date Motion was filed
  2. Date Motion was served on OPP/OPA
  3. Date the NOMM was served on the public authority if public assistance is being received
  4. Date the NOMM was served on the county attorney if the county attorney is the attorney of record

One thing to consider doing if our client is filing the motion is to immediately file a NOMM and super brief affidavit indicating the basic request in order to get that retroactive date set. Then, you can supplement the record later on with your supplemental affidavit and Amended NOMM (if necessary)

Additionally – if the parties come to their own agreement and want to stipulated to a date earlier than when the motion was filed, they can do that and the Court will sign off, but that is the only way you can go retroactive prior to the dates mentioned agove.

Is an Evidentiary Hearing required?

NO. MN Statute 518.552 Sub 5b(e) explicitly says “The court need not hold an evidentiary hearing on a motion to modify maintenance.”

What if the person paying or receiving maintenance dies?

Unless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated upon the death of either party.  MN Statute 518.552 Sub 5a

What if the person receiving maintenance gets remarried?

Unless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated upon the remarriage of the party receiving maintenance. MN Statute 518.552 Sub 5a

Does spousal support continue if the personal receiving support starts living (cohabitating) with someone else (adult child, significant other, roommate)?

Cohabitation alone does not end support obligations, and the court cannot modify a maintenance aware based solely on cohabitation between relatives. However, the Court can consider a modification related to cohabitation if:

  1. whether the obligee would marry the cohabitant but for the maintenance award;
  2.  the economic benefit the obligee derives from the cohabitation;
  3. the length of the cohabitation and the likely future duration of the cohabitation; and
  4. the economic impact on the obligee if maintenance is modified and the cohabitation ends.

Modification could mean suspension or reservation of the maintenance in addition to straight up canceling it.

A motion to modify a spousal maintenance award on the basis of cohabitation may not be brought within one year of the date of entry of the decree of dissolution or legal separation that orders spousal maintenance, unless the parties have agreed in writing that a motion may be brought or the court finds that failing to allow the motion to proceed would create an extreme hardship for one of the parties.

What happens when the personal paying spousal maintenance retires?

See MN Statute 518.552 Sub 7 which is entirely related to retirement. Essentially, the Court will consider a modification based on the following:

  1. whether the retirement is in good faith or is an unjustifiable self-limitation of income;
  2. whether the party has attained the age to receive the party’s full retirement benefits under section 216 of the Social Security Act, United States Code, title 42, section 416, or the customary age for retirement in the party’s occupation;
  3. whether a party has reasonably and prudently managed the party’s assets since the dissolution of the marriage; and
  4. the financial resources available to both parties.

Other things to consider when someone retires:

It is presumed that when a party has attained the age to receive the party’s full retirement benefits under section 216 of the Social Security Act, United States Code, title 42, section 416, or the customary age for retirement in the party’s occupation, the party will use both income and assets to meet the party’s needs.

A party must not be presumed to have retired in bad faith or to have unjustifiably self-limited the party’s income in the event that the party’s retirement is occurring on or after the date the party attains the age to receive full retirement benefits under section 216 of the Social Security Act, United States Code, title 42, section 416, or the customary age for retirement in the party’s occupation.

A motion to modify maintenance due to retirement may be brought before a party actually retires provided that the moving party specifies the date by which the party’s retirement will occur. The court may then make the modification effective as of the actual date of retirement.

What to include in the Motion and Affidavit?

A clear and thorough explanation of both parties’ incomes and our client’s budget is crucial. It should be crystal clear how much our client makes and what their expenses are. We should have supporting documentation for all income (paystubs, taxes, 1099, etc) and also for all expenses (mortgage statement, electric bill, phone bill, insurance bill, etc)

If OPP’s income/budget is a complete unknown and that is critical to the modification, then you’ll want to consider doing discovery AFTER you file/serve your NOMM and Affidavit. You cannot technically serve discovery without a motion pending, so filing/serving those things first is required. Again, the affidavit and motion can be simple and vague. You will supplement this later.

 

Examples:

 

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