This blog will cover two topics. The first topic is the question of what happens if the payor of spousal maintenance retires? The second topic is a question about whether or not a recipient of spousal maintenance has an obligation to work to try to increase his or her income. A court may modify spousal maintenance after a showing of a substantial increase or decrease in earning of a party that makes the original award of spousal maintenance seem unreasonable and unfair. Minn. Stat. § 518A.39, subd. 2 (2017).
What happens if the payor of spousal maintenance retires?
In Minnesota, this area of spousal maintenance isn’t well developed yet due to a lack of case law on topic. A payor who retires has the burden of proof of showing: (1) that they retired in good faith and (2) that because of the retirement there has been a change in circumstances. This is of course if there is no clause in the divorce decree that states otherwise.
In the case, In re Richards, 472 N.W.2d 162 (Minn. Ct. App. 1991), the court decided that it was necessary to look at the reasons why the ex-husband had retired early. If the husband’s retirement or obligor’s retirement caused the change in circumstances was made in good faith, then the wife or obligee should share in the hardship as if the parties had remained together. Giesner v. Giesner, 319 N.W.2d 718, 720 (Minn. 1982). In Richards, the court stated that a trial court, in a bad faith claim should look at the health of the obligor, employment history, the ability and expectation regarding early retirement at the time of divorce, the managerial policies and economic conditions at the time of retirement, along with other reasons the obligor may offer. 474 N.W.2d 162, 165 (Minn. Ct. App. 1991).
“An obligor’s decision to retire at a ‘normal or customary retirement age’ weighs strongly in favor of finding that the decision to retire was made in good faith.” Gronvall v. Gronvall, No. A17-0185, 2017 Minn. App. Unpub. LEXIS 1012, *10 (Minn. Ct. App. Dec. 11, 2017) (citing Hemmingsen v. Hemmingsen, 767 N.W.2d 711, 717 (Minn. App. 2009). This may be applicable to physicians, who tend to retire early when compared to some professions.
The court in Kruschel v. Kruschel, 419 N.W.2d 119 (Minn. App. 1988) decreased the maintenance award after obligor’s voluntary retirement. The court decided that the obligor did not need to use his pension which had been awarded to him in the settlement. “The court reasoned that the change made the original decree unreasonable because property awards are final, and payment of maintenance from pension income would improperly modify the original property award.” In re Richards, 472 N.W.2d 162 (Minn. Ct. App. 1991) (citing Kruschel, 419 N.W.2d 119, 122 (Minn. App. 1988). However, if an obligor retires in bad faith, their property award may be invaded. Sieber v. Sieber, 258 N.W.2d 754, 757 (Minn. 1977).
Does a recipient of spousal maintenance have an obligation to work to try to increase his or her income?
Under Minnesota law, many times a recipient of spousal maintenance will have an obligation to work. Minn. Stat. §518.552 subd. 1 requires a court to consider the spouse’s income from “appropriate employment.” Appropriate employment is determined in many instances by the age of the recipient, health, education, and job market. Temporary maintenance may be awarded to enable a recipient to get the education or sufficient training that would allow them to find the appropriate employment.
In the case, Flynn v. Flynn, 402 N.W.2d 111 (Minn. Ct. App. 1987) the court states that while it cannot force a spouse to work a certain job, the spouse’s earning potential may be taken into account when calculating maintenance and child support. Id. at 114 (citing Resch v. Resch, 381 N.W.2d 460, 462 (Minn. Ct. App. 1986)). In some cases, a highly educated spouse may attempt to take a lower paying job to increase child support awarded, and to strengthen the spousal maintenance argument. Prior to Passolt v. Passolt, 804 N.W.2d 18 (Minn. Ct. App. 2011), there was the belief that if a spouse did not work during what was considered to be a long marriage, they should not have to work or work more than they had during the marriage. The Court of Appeals said that isn’t the case under Minn. Stat. §518.552, subd. 2.
In many cases, if a spouse worked part-time during the marriage, the spouse will have an obligation to increase his or her income through full-time employment if the court finds that full-time employment is appropriate employment.
If you have Divorce and Family Law questions, please contact the Family Law experts at Minneapolis based Lake Harriet Law Office at 612-750-4843.