Not with a bang, but a whimper.

Such is Minnesota’s first brush with alimony reform.

On August 1, 2016, Minnesota’s spousal maintenance law gained a newly-minted subdivision 6, providing a basis to modify maintenance if a recipient begins living with a new partner.

Supporters cheer the measure as a “common-sense” change. Skeptics suggest more dire and intrusive consequences:

Many live-in lovers will all of a sudden find themselves the recipients of subpoenas or be compelled to supply their income to the lawyer for their lover’s ex-spouse.

But, for champions and critics alike, reality may prove disappointingly more banal.

Same as it ever was?

Because, “change” seems to be putting it rather strongly.

As amended, the new subdivision gives the court the power to “reduce, suspend, or reserve” spousal maintenance based on a maintenance recipient’s cohabitation with another adult.

Or that’s the headline.

But to qualify for a “reduction, suspension, or reservation,” the payor needs to jump over at least four initial hurdles:

  1. the cohabitation (or other developments) must rise to the level of a substantial change in circumstances generally required for maintenance modifications;
  2. the maintenance recipient must not be legally prohibited from marrying the cohabitant (e.g. they can’t be related);
  3. modification of maintenance cannot be precluded by a private agreement (often referred to as a Karon waiver); and
  4. in the absence of a written agreement or undue hardship, the motion to modify must be brought more than one year after entry of a decree .

Only when all of the above requirements are met, can the court consider an appropriate reduction or modification, based on four factors:

  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.

The New (Old) Normal

And this is where I begin to narrow my eyebrows and tilt my head questioningly to one side. Because haven’t we seen this before?

Like in 1979?

[A] meretricious relationship between a divorced spouse and another may be grounds for reducing or terminating alimony “in so far as it might improve an ex-spouse’s economic well-being.”

Abbott v. Abbott, 282 N.W.2d 561 (Minn. 1979).

The long-standing rule is, and has been for the better part of 35 years, that if “living together” improves the recipient’s financial well-being, it may amount to a substantial change in circumstances sufficient to justify a maintenance modification.

See Bissell v. Bissell, 191 N.W.2d 425, 428 (Minn. 1971); Sieber v. Sieber, 258 N.W.2d 754 (Minn. 1977); Abbott v. Abbott, 282 N.W.2d 561 (Minn. 1979); Auer v. Scott, 494 N.W.2d 54 (Minn. Ct. App. 1992); Aaker v. Aaker, 447 N.W.2d 607 (Minn. Ct. App. 1989).

In other words, cohabitation, like the bulk of our maintenance law, is all about needs and how to meet them. And this newly minted subdivision does little (nothing?) to change that.

If resources from a new partner are available to meet needs, a payor can seek a reduction. But if the cohabitation is economically neutral (or worse), it won’t provide an independent basis to modify maintenance.

Which seems to be the beginning and the end of this “new” law as well.

Granted, a court will need to consider at least one decidedly non-economic factor: “whether the obligee would marry the cohabitant but for the maintenance award.” But it also must examine “the economic impact on the obligee if maintenance is modified and the cohabitation ends”–an exercise in judicial prognostication previously absent.

And it’s precisely this latter consideration that may just be the most significant part of the new law–nudging courts to avoid final “terminations” in favor of more gentle and less conclusive “reservations” or “suspensions,” either of which might allow the court to step-in and revive maintenance if the relationship goes by the wayside.

Time will tell.

But at least for now, Minnesota’s “new” cohabitation statute seems to provide at least as much cause for hesitation as either hope or hand wringing.

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