A statute quietly enacted during the waning days of the recent legislative session regarding the rights of parties living together outside of marriage may be a prime example of another law: the law of unintended consequences.
The measure, a modification of the state law concerning payment of spousal maintenance, often referred to as alimony, permits curtailment of post-divorce payments from one ex-spouse to the other if the recipient is in a live-in relationship, legally known as cohabitation.
The impetus for the provision came from divorced individuals, primarily but not exclusively men, their current spouses, and their advocates. They fret that the payments inequitably diminish their existing resources when the former spouses are in live-in relationships with others, who contribute to their expenses. The new measure also is aimed at discouraging an ex-spouse who is receiving maintenance payments while cohabiting with another from refraining to get married, which generally will cut off future payments. As a result, cohabitation is encouraged, proponents of the measure assert. Their position is somewhat supported by the growing numbers of individuals in living-together arrangements, many of them following divorces.
But the well-intended expectations of the proponents of the new law might become dashed on the rocks of reality as the new law is likely to produce more problems than it solves.
At first blush, the law seems to benefit divorced men, who are most often likely to be paying spousal maintenance to their ex-spouses. But the law will not necessarily inure to the benefit of all divorced men at the expense of women. Men living with women who are receiving spousal maintenance will be hurt by any potential reduction in their live-in companion’s income.
Spousal maintenance, or alimony, terminates when the recipient remarries, unless agreed otherwise by the divorcing parties, which hardly ever happens. Prior to the new measure, enacted in mid-May and effective Aug. 1 of this year, cohabitation did not trigger a potential modification of spousal maintenance. Under the new provision, however, spousal maintenance may be reduced, modified, suspended, reserved or terminated due to co-habitation upon request of the party obligated to make the payments.
Presented with such a demand, a judge must take into account a number of factors in deciding whether to eliminate or otherwise change the existing spousal maintenance at all. Since the decision is discretionary with a court and not automatic, there is likely to be a substantial increase in cases litigated in Minnesota, tying up preciously few judicial resources.
One consideration is whether the recipient of support would marry the cohabitant but for the spousal maintenance payments. Addressing this issue poses some potential difficulties for a judge. They include deciding if the parties should be required to furnish for review love letters, cards, e-mails, texts, diaries, and the like. Sharing this very personal, sometimes intimate information is contrary to the philosophy that has long been embedded in Minnesota’s no-fault divorce system that eschews this kind of intrusive inquiry.
A court also is to consider the “economic benefit” the recipient of support derives from the co-habitation relationship. Attorneys will need to present evidence regarding whether the expenses of the recipient of support are reduced. Attorneys for the paying parties will want to find out the income of the live-in paramours of the ex-spouses. But this undertaking creates uncertainty because another law already on the books prohibits judges from considering the financial circumstances of each party’s spouse in connection with a request to modify existing support obligations, and that law has not been changed. The pair of provisions raise questions whether the Legislature intended that the income of one party’s spouse is not relevant, but the income of a live-in companion is pertinent.
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. Their reluctance to share that information may strain their current cohabitation relationships or lead to their demise.
A judge is also to consider the economic impact on the recipient if maintenance is modified and the cohabitation ends. Attorneys for recipients will likely portray a significant impact upon their clients if spousal maintenance ends. If cohabitation ends and maintenance has also been terminated, then it is almost certain that the recipient will be hurt.
Another problem is that spousal maintenance might have been negotiated as part of a complete settlement package. The recipient of the support may have taken less in property settlement to get a higher spousal maintenance. Termination of spousal maintenance could result in an inequity. A judge also must take into account both the length of the cohabitation and its “likely future duration.”
These related factors could lead cohabitants to claim that their relationship is unstable and unsatisfying, assertions that could undermine their arrangements and ultimately lead to separation, which would negate the ability of the ex-spouse paying maintenance to curtail the payments, contrary to the main objective of the statute.
These consequences, probably not foreseen by the legislators who enacted the measure or the governor who approved it, are likely to test live-in relationships and could make them rather touchy. For living-together couples, adjusting to these considerations may lead, in Shakespearean terms, to a summer of discontent.
Cathy Gorlin is a Twin Cities-based attorney practicing in the area of family law.
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Word choice
When my ex and I split up, I was able to avoid having to pay alimony, since her job paid about as well as mine did, but I did pay monthly child support (about 1/3 of my pre-tax income). Since my primary concern was the welfare of my child, I didn’t really care if she cohabited with a new lover or not – my thinking was that “child support” meant pretty much just that. It got used for other things – furniture, etc. – which was initially more than a little annoying, but I decided that buying furniture was, in essence, preserving the standard of living of my child, which seemed like “child support” to me, so I didn’t make a fuss about it.
Be that as it may, rather than “…tying up preciously few judicial resources,” I think what Ms. Gorlin intends is “…tying up limited (or perhaps VERY limited) judicial resources.”
“unintended results”
I’m only starting this conversation because Ms. Gorlin’s piece has stimulated long-discarded thoughts within a younger me. Naturally, I wonder now if those rather ancient considerations hold any merit today.
She is correct in supposing most of us didn’t know of this recent legislation, perhaps for good reason.
On second reading, I still wonder how many dissolution agreements even include spousal support payments these days. How often is it justified, often enough for this bill to have been significantly more than a practical measure of reality?
(Let’s not expand this discussion to “child support,” please. That’s not at issue here.)
So, just how significant in practical consequences is this new statute? Gorlin poses possibilities, but just how exceptional are those? Do we have any feel for how current judges might modify existing support judgements in light of new petitions under this statute? Might we review pre-existing realities of judicial behavior in granting/ammending support payments?
Really, what is the practical impact of this change? One might assume the legislature reviewed these considerations. Is this a logical Part II of reality adjustment made by previous lawmakers in significantly providing relief from what many viewed as punitive child support schedules? That’s very old news and not relevant here other than as footnote.
Does anyone have a cogent view on this current revision?
Doth protest too much
The purpose of this change is to prevent people from double dipping – collecting spousal maintenance while maintaining their prior standard of living while cohabitating with someone else. It is fixing an unfair situation.
Yes, it will hurt divorced men in the cohabitating relationships. But it should – they are benefitting from the double dipping as well.
The change will create extra work for the courts, but producing income and financial information is nothing new in family law cases and not unduly burdensome.
If the cohabitation ends, then you get the maintenance amount restored. It’s really not that hard.
Nicely Terse
Thanks, Pat. It does seem the author reaches well beyond practical application of the statute. I’d still like to know what % of Minnesota dissolution decrees require maintenance support of the former spouse. Unless some tide has turned, it can’t be very large, can it?
Lengthy Payments
One commenter asks about how often alimony is even awarded. To me, if this law is logical, which I believe it is, it’s logical whether there is few cases it may apply to or many. As a Minnesota family law attorney, I would agree that there appears to be less cases than ever before where the payment of alimony is ordered. Nevertheless, understand that it can be ordered on what is referred to as a “permanent” basis. In other words a payor could be ordered to pay until he or she retires which may be several years or even decades. Thus the recipient who cohabitates for years on end while receiving alimony for years on end while enjoying a comfortable dual income really seems to be a scenario this law change aims to, appropriately, address.
A middle way
Marriage is binary in the eyes of the law. You are or you aren’t. All people who live with another adult outside of marriage aren’t married, but also aren’t exactly single. Why not establish a third legal status – domestic partners – which would give some of the benefits of both situations? Make it a three year renewable contract. It works particularly well for adults who don’t intend to have children together. Then when a person acquires a domestic partner, they could be expected to give up some but not all their spousal support. Basically, this would be changing the rules to fit how more and more people are choosing to live.
Binary Function
Yes, marriage is that: on/off/on again sometimes. Love definitely resides on a dimmer board, however, creating levels of intensity along some spectrum of red/blue/amber/green. Getting the right combination of gels is the challenge there.
marriage is just a piece of paper away from cohabitation
Yes, this is incredibly bad news for divorce attorneys, such as the writer of this article. One less opportunity for billable hours as the spouse who dumps you angles for an eternal piece of your paycheck (it’s called stealing).
If one woman is supported by two men, then another woman has to give up her chance of sharing an economic partnership. Alimony for cohabitating women is unfair to both the man paying and to the woman he is taking a second chance with. We don’t live in an era where men take off with their much younger secretary – after microsoft word and subsidized college for low income women – no one even has a secretary. We do live in an era where women initiate most divorces and canoodle with younger men.
Time to be fair to all, except divorce attorneys who consider their skill set and 3 years of post college education to be worth hundreds of dollars an hour.