During a Minnesota divorce proceeding, the Court may order that one spouse pay spousal maintenance to the other spouse. An award of spousal maintenance is based upon need, and the primary reason for spousal maintenance is to provide cash flow to a spouse in order to approximate the marital standard of living. However, determining the amount (and duration) of spousal maintenance can be an imprecise task. The applicable Minnesota Statute involving spousal maintenance is Minn. Stat. 518.552, specifically subdivision 2(b).
In determining the appropriateness of a spousal maintenance award under Minn.Stat. § 518.552, the district court may consider a maintenance recipient’s prospective ability to become fully or partially self-supporting without making a finding that the recipient has acted in bad faith to remain unemployed or underemployed. Passolt v. Passolt, 804 N.W.2d 18 (Minn. Ct. App. 2011).
Vocational Evaluations and Spousal Maintenance
A vocational evaluation is an effective tool when one spouse who is ordered (or will be ordered) to pay spousal maintenance to the other spouse alleges that s(he) cannot pay the maintenance due to insufficient cash flow to meet a reasonable monthly budget. A vocational evaluation is also useful when a spouse who will be a recipient of spousal maintenance accepts employment (or anticipated employment) at a salary less than what is reasonable based on education and work history. An experienced vocational evaluator can properly determine that the spouse is underemployed (sometimes by more than 100% of current base income) and qualifies for a much higher-paying job. The court can use the paying spouse’s earning capacity to calculate spousal maintenance rather than the projected lower income. See Aaker v. Aaker, 447 N.W.2d 607 (Minn. Ct. App. 1989). If a spouse has retired at an appropriate age (based on profession) it is improper for a court to impute income to that spouse based on his or her pre-retirement earnings. We see this in our cases from time-to-time, and it represents an emotionally based (instead of a data based) legal argument.
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Located in the historic Linden Hills neighborhood of Minneapolis, Lake Harriet Law Office, LLC Attorneys Randall A. Smith and Amber C. Bretl provide outstanding legal representation exclusively in the areas of Divorce and Family Law.
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