2016 may bring changes big and small to Minnesota’s spousal maintenance (alimony) laws.

At the beginning of January, the Supreme Court heard oral arguments in Curtis v. Curtis—marking the first time in decades the Court will take up a case on establishing spousal maintenance. (More on that here.)

And our highest court may not be alone in thinking of 2016 as the year to take on maintenance.  The legislative session beginning in March can expect to see at least one bill aimed at terminating spousal maintenance upon a recipient’s “cohabitation.”

The Cohabitation Debate

At its core, HF 1333, sponsored by Representative Peggy Scott last session, adds cohabitation as a new basis for terminating or suspending spousal maintenance—a list currently limited to either party’s death or the recipient’s remarriage. Though the bill was first brought forward in 2015, it didn’t progress out of committee, and is expected to be introduced again this year.

This isn’t the first time cohabitation and maintenance have made it onto the legislative radar. In 2010 SF 2362 (whose House companion was also sponsored by Representative Scott) provided for termination of maintenance if a recipient cohabited with an unrelated person of the opposite sex for 6 months.

But HF 1333 goes beyond it’s predecessor—not only to recognize the existence of same-sex cohabitating relationships—but to create a detailed facts-and-circumstances test for determining what counts as cohabitation. The bill asks the Court to examine seven different factors in evaluating a claim of cohabitation, including:

(1) joint bank accounts, joint holdings, or other jointly held assets or liabilities including joint ownership in real estate;

(2) joint responsibilities for living expenses;

(3) recognition of the relationship with family and friends;

(4) whether or not the parties are living together, maintaining frequent contact, sharing household chores, or demonstrating other indicia of a mutually supportive intimate personal relationship;

(5) the duration of the relationship;

(6) whether or not the obligee has an enforceable promise of support from another person or has engaged in a commitment ceremony regardless of the legal significance; and

(7) other relevant evidence.

The statute then provides:

[T]he court shall not find an absence of cohabitation solely on the grounds that the obligee and the individual with whom the obligee cohabitates maintain separate residences or do not live together on a full-time basis

In other words, a court may find a “cohabitation relationship” as defined by statute, even if a maintenance recipient is not actually co-habitating, with someone else.

A National Trend

If HF 1333 passes, Minnesota would join more than a dozen other states that currently consider “cohabitation” in suspending or terminating a maintenance award.

According to a presentation given at the Fall Conference of the Family Law Section of the American Bar Association, as of 2014, seven states provided for “automatic” termination or suspension of maintenance in cases of cohabitation (Massachusetts, Illinois, North Carolina, Alabama, Arkansas, Louisiana, and Utah), and another three create a rebuttable presumption in favor of termination or suspension (Delaware, Virginia, and California).

Five more states provide relief at the discretion of the Court (Maine, New York, Georgia, Missouri, and Oklahoma); while two others (Tennessee and South Carolina) provide some combination of the above.

In doing a bit of my own research, I’d add New Jersey to the list as well, with the passage of its Alimony Reform Act in 2014.

Connecticut has a somewhat different model, permitting (but not requiring) termination of suspension if the recipient:

[I]s living with another person under circumstances which the court finds should result in the modification, suspension, reduction or termination of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs of the party.

Interestingly, this is essentially the Minnesota model already present in case law. See Mertens v. Mertens, 285 N.W.2d 490 (Minn. 1979); Sieber v. Sieber, 258 N.W.2d 754 (Minn. 1977)

Of course it’s unfair to assume that termination based on cohabitation is the norm. A number of states don’t even provide for automatic maintenance termination in the event of remarriage. (Looking at you Oregon.)

I Don’t Think That Word Means What You Think it Means

While HF 1333 might be viewed as part of a national trend, the bill is most interesting for its almost Orwellian use of the word “cohabitation”–a term that connotes, to me at least, a residential, romantic relationship, “shacking up” as an earlier generation might have put it.

But HF 1333’s 7-factor test hardly limits itself to live-in paramours.

A plain reading of the proposed statue could just as easily apply to maintenance recipients living platonically with a roommate, or with an adult child, or an elderly parent.

The bill even reaches beyond residential relationships, to consider “co-habitating” couples that don’t actually live together.

Wait. What?

And this is where the bill becomes more problematic.  If the test isn’t strictly “living together” is it really our intention to ask family court judges to decide how many sleepovers is too many?  How many dinners he paid for versus her? Who cleans and who cooks?

The law, in its current form at least, seems designed to prevent the cautious maintenance recipient from ever having a serious, romantic relationship for fear their primary means of support might vanish (without any guarantee a new partner will be willing or able to replace it).

One also begins to wonder about the amateur sleuthing that goes into proving such a loose definition of cohabitation:

[M]aintaining frequent contact, sharing household chores, or demonstrating other indicia of a mutually supportive intimate personal relationship

The statute veritably screams private investigator.

More to Come…

While the cohabitation bill may seem a somewhat modest proposal in comparison to reform efforts in Massachusetts or New Jersey, anyone reading the tea leaves should expect that–win or lose–amending our maintenance laws will remain on the legislature’s radar.

Following the monumental changes to custody and parenting time in 2015, and anticipated changes to child support in 2016, spousal maintenance remains the most obvious candidate for reform.

And honestly, we need it.

Our spousal maintenance laws were last amended during the Reagan administration, and modeled on a fundamentally different vision of the family. They’re cumbersome, unpredictable, and often don’t reflect the realities of the 21st century family.

At least one group has emerged to lead the charge: MN Alimony Reform, founded by Michael Thomas, has developed an ambitious list of reforms modeled on recent efforts in New Jersey and Massachusetts.  The groups efforts have yet to make their way into specific legislation, but include (according to its website):

Reform[ing] Permanent Spousal Maintenance [to encourage ex-spouses to become self-supporting];

Creat[ing] durational limits on spousal maintenance to a maximum of not longer than one-half of the marriage for able bodied individuals

Bas[ing] the amount of spousal maintenance awards on a “calculator” or “formula” similar to Minnesota’s present child support system…

Reform[ing] Alimony laws to give specific guidelines, so they can be applied consistently regardless of the judge presiding, while allowing enough judicial discretion to protect the truly needy

Everyone should be entitled to retire. Alimony should end at the retirement age established by the Social Security Act

Cohabitation of the recipient of Maintenance shall terminate the payor’s obligation, just as death or remarriage currently do. Minnesota law should encourage marriage in a time when marriage rates are declining and cohabitation is increasing.

All of the above are certainly reasonable concerns from the perspective of a maintenance payor. Notably absent, however, are reforms that recognize the economic value of caregiving to a family, and the very real economic sacrifices many spouses make to provide that care.

If the true aim of advocates is “reform”–rather than simply reduced maintenance awards–a more balanced approach is needed. One would hope to see the goals of increased predictability and a more rational treatment of retirement balanced against a real concern for the financial security of spouses who take on the burdens and sacrifices of caregiving.

Reform, then, isn’t just about reducing payments to former spouses, but about  encouraging  both spouses to achieve self-sufficiency upon divorce, while recognizing the very real barriers that exist for caregivers.   In short, a law that appreciates the contributions of both spouses, and doesn’t expect a spouse to place herself (or himself) at economic risk by raising the next generation.

This would be true reform.

Maybe it’s time for another dialogue group.

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