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Spousal maintenance: When 'permanent' support isn't

Life would be easier if definitions of words were consistent in all uses. Unfortunately, that doesn't always happen. Take the word "permanent" for example. Webster's New World Collegiate Dictionary offers as its main definition, lasting or intended to last indefinitely without change.

In that context, it seems logical to expect that if one spouse in a Minnesota divorce agrees or is ordered to pay spousal support to the other spouse on a permanent basis, that the payments will last indefinitely. However, in the dissolution of marriage process, permanent can unexpectedly become temporary if this issue is not handled carefully.

Under Minnesota law, while there are clear formulas for establishing what child support should be, the same does not exist for spousal support. Instead, the statute lists a series of factors the courts must weigh when deciding spousal maintenance levels and their duration.

For example, if a couple has been married a significant number of years and the spouse seeking maintenance has been a homemaker for most of that time and has little chance of becoming self-supporting, maintenance levels might be set as permanent. Unless previously agreed upon by both sides, the maintenance is likely to continue until the death of one of the parties or if the recipient party remarries.

However, the law also allows for changes in the original maintenance order if a "substantial change in circumstances" occurs. An example of this might be if the obligor retires. This can result in a steep decrease in income, making the original support plan unfair or unreasonable. Retirement certainly could count as a significant change in circumstances, but there is no specific language in current statute that addresses the subject.

What this means is that with the onset of retirement, the payor must go to court to seek a modification in support. And the onus is on the retiring party to show just how much of a change retirement represents. It may then be up to the court to revisit the conditions of the original settlement, including possible provisions related investment or retirement income, and determine just what the change will be.

What's clear is that in the law, permanent doesn't always mean permanent, and protection of rights depends on having skilled representation.

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