The end of a marriage, as anyone who’s been through it knows, is rarely the end of a marriage.
There are often children to support and co-parent, property to divide or sell, friendships to renegotiate and, for a small percentage of couples, alimony to factor in.
Judges aren’t obligated to award alimony, commonly called spousal maintenance. But when they do, they often take into account the financial realities of the lesser earning spouse, the time that recipient would need for education or job training, the standard of living the couple had during the marriage and the length of the marriage.
While uncommon, some judges award permanent alimony, which ends only when one of the parties dies or the recipient remarries.
Should a bill in the Minnesota Legislature wend its way to passage this year, judges may find themselves weighing a spicier reality: cohabitation.
In other words, if the alimony recipient is proven to be living with another partner, why should the ex have to keep paying?
“We’re not advocating putting people out on the street,” said the bill’s House author, Rep. Peggy Scott, R-Andover. “But this has been harmful for many, many years for many people.”
Scott recently heard from one alimony-paying constituent “who is living in a one-bedroom apartment with no savings. His wife quit her job and is living with another guy.”
Cohabitation wasn’t acceptable decades ago, she noted. In fact, unmarried couples couldn’t even get a hotel room.
“Today, it’s no big deal,” she said. “We just live in a different world today.”
It’s true marriage rates are down in most age groups. It’s also true a growing number of those paying spousal maintenance are women.
The Minnesota Alimony Reform bill (HF 1333) would require that payments end when the payee provides evidence of the ex’s joint bank accounts, joint responsibilities for living expenses, recognition of the new relationship with family and friends and the sharing of household duties.
It’s being enthusiastically supported by a grass-roots group called Minnesota Alimony Reform (mnalimonyreform.com), founded by a dentist, Dr. Michael Thomas of Marshall, Minn.
Thomas was divorced in 2005, after a 19-year marriage and three children. He said he was advised to agree to permanent spousal maintenance for his former wife, who worked part-time but mostly stayed at home to raise their children.
“Alimony was never an issue for me,” said Thomas, who has since remarried. “It’s just the duration of it. Right now, people can’t even retire. This is not about making villains of judges, attorneys or exes. It’s about a law whose time has long passed.”
Thomas, who does support long-term alimony in the case of someone with disabilities or severe medical issues, said he met his former spouse’s fiancé about seven years ago; the couple have yet to marry. (His former wife declined to be interviewed for this column.)
Thomas heard about the alimony reform effort last year and jumped in. His website offers a “nightmare stories” page, which gives you a sense of just how emotional the issue is for many.
“One of the biggest and most troubling factors in keeping the current law in place,” Thomas said, “is the ongoing churning, conflict and expensive litigation that can go on for years.
“The mission of our group is fairness, self-support — and finality. The way the law is written now, you’re never able to be done with the relationship.”
The cohabitation quandary
Minnesota is among a handful of states pushing for alimony reform. Massachusetts, bolstered by bipartisan support, passed sweeping changes in 2011. Illinois updated its laws in 2015, but has long considered the recipient’s cohabitation with another person on a “continual conjugal basis” a reason to end payments.
That stipulation makes some family lawyers queasy. They worry that defining — and proving — cohabitation will be a boon to nobody but private investigators peeping into windows.
“I would like to see something, because times have changed,” said Twin Cities family lawyer Kathleen Newman, noting that she knows of one 84-year-old doctor who still pays spousal maintenance. “Yet, the cohabitation clause bothers me.”
She prefers a case-by-case assessment, “because there are still a lot of people who haven’t worked in 20 years.”
Divorce lawyer Michael Boulette of Lindquist & Vennum, an adjunct law professor, shares a similar sentiment.
“Overall, reform is really, really important,” said Boulette, who pens a robust family law blog (family-in-law.com) that deals with this and many other modern challenges.
“But I think it’s unfortunate that cohabitation is where everyone is starting. I understand how emotionally fraught that can be, but retirement really should be the focus of a lot more of our attention. There should be some sense for people of when they will be done.”
That, he said, includes prudence on the part of the recipient “to plan for that day.”
While the Minnesota chapter of the American Academy of Matrimonial Lawyers (AAML) opposed the bill in 2015, Minnesota AAML fellow Brian Sobol understands its value.
“Cohabitation should be a factor,” he said. “But the way the bill is drafted is too harsh. A better form of a bill would say that, if cohabitation is shown to provide an economic benefit, it should be a factor in a case to modify.”
Whether the bill passes in 2016, its supporters should be praised for forcing an essential conversation about a growing number of modern families. Let’s keep the focus on fairness for both parties, finality for most parties and, always, the best interest of children at the center.