In re the Marriage of Curtis v. Curtis, looked to be a pretty dry decision on what–to most non-lawyers–would be an esoteric legal issue:

Can a spousal maintenance recipient be required to reallocate investable assets awarded to her in a divorce in order to achieve a higher rate of return thereby reducing (or eliminating) her need for spousal maintenance?

It also seemed like a pretty straightforward question given that the Court of Appeals already addressed it twice before, and answered “no” both times. See Hislop v. Hislop, No. C7-98-144 (Minn. Ct. App. Aug. 18, 1998)1; Levinson v. Levinson, No. C5-99-1772 (Minn. Ct. App. July 3, 2000).2

But every now and then the third time really is a charm, and in an unremarkable, unpublished 8-page opinion the Court of Appeals upheld the trial court’s expectation that Wife reallocate her $2.1 million investment portfolio to maximize investment income and meet her needs without any contribution from Husband.

Or, put another way: $2.1 million is enough.

And there it might have ended.

Except, that is, for a blistering 12-page dissent by Judge Kirk excoriating the majority for “diminish[ing] the value of the stay-at-home party’s contribution to the family partnership.”

Judge Kirk’s dissent is best read in its entirety, but includes such rhetorical gems as:

Now, 23 years later, this partnership produced two lovely children and became an economic juggernaut

and

Counsel for husband argued that this account was a rainy day fund, but, if, as suggested by counsel, this dissolution proceeding has created a major thunderstorm, why is it only raining at wife’s house? At husband’s house located in the same neighborhood in the same small town, the sun is shining brightly.

But beyond the particular inequities of this case, Judge Kirk cautioned against the decisions’ more general tendency to disregard contributions of stay-at-home parents:

When they began this union, wife said, “I will stay at home for the good of our children and family,” and husband said, “I’ll take care of the money.” The contribution of one spouse should not outweigh the contribution of the other when the goal is a balanced and well-functioning family.

By depriving Wife of any share of Husband’s ongoing income, Judge Kirk argues the lower court also devalued her sacrifices as a stay-at-home parent:

It is troubling that after giving up her opportunity to have a meaningful career, the district court suggests that wife should secure a full-time, minimum wage job in Sleepy Eye. This is in stark contrast to the affluent lifestyle that wife enjoyed during the 23-year marriage. Any parent familiar with the unpredictability of Minnesota law in recognizing the contributions of the stay-at-home parent and the sacrifices associated with surrendering a career should be hesitant in abandoning a career for the good of the family.

Of course, the best part about Judge Kirk’s dissent is that he’s right.

As I’ve argued before, this is precisely the problem inherent in reducing spousal maintenance (alimony) to a battle of incomes versus budgets:  you lose any meaningful consideration of each spouses’ investment in the marital partnership. You stop asking what each partner gave up, what each sacrificed for the sake of the family.

When Courts limit their focus to income and expenses, they reduce what is essentially a question of equity (how to ensure that each partner receives the reasonable benefit of her investments) to a question of arithmetic (how to meet these budgets on this income.) The second question may be easier, but it also ignores probably the only viable rationale left for spousal maintenance in the 21st century.

Gone are the days of coverture when “the primary purpose of…alimony…[was] to provide a substitute for the husband’s duty to support his wife.” Bollenbach v. Bollenbach, 175 N.W.2d 148, 155 (1970).

Today, marriage is far more about shared sacrifice, shared reward, and valuing the efforts of both partners as equal participants–including stay-at-home parents.

If spousal maintenance is to have any continuing viability in a world of gender equity and marriage equality (and that’s a big “if”), it has to speak to this new vision of marriage based on mutual investment and shared sacrifice.

To borrow again from Judge Kirk:

The law must be nimble in adapting to the changing dynamic of the marital partnership in our rapidly evolving society.

 Alas, this isn’t the first time the Court of Appeals has called for a broader reexamination of our spousal maintenance laws, and so far all they’ve gotten is this.

I’m not holding out for a sea change any time soon, but we’re certainly far overdue.

Notes

1 “Wife’s affidavits indicate that she is keeping the assets in a secure but low-interest money market account while attempting to teach herself enough about finances to avoid being entirely at the mercy of a financial planner; there is no evidence that wife is acting in bad faith so as to require this court to impute a higher rate of return. Cf. Hecker v. Hecker, 568 N.W.2d 705, 710 (Minn.1997)”

2 “The parties’ portfolio appraisal and respondent’s testimony at trial show that, during the marriage, the parties’ investment strategy was not to maximize income but rather to invest in assets with growth potential. Respondent argues that appellant has an obligation to change her investment strategy to maximize her income in order to reduce respondent’s maintenance obligation. But the parties stipulated to an equal division of their marital property. Thus, requiring appellant to sell stocks and pay capital gains taxes on the sales to make the funds available for investments that produce more income would result in an inequitable distribution of property. And there was no evidence before the district court regarding what the tax effects of such sales would be. In the absence of evidence that would have given the district court a basis on which to adjust the property distribution, the district court did not abuse its discretion in declining to force appellant to incur a tax liability to lower respondent’s maintenance obligation.”

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