Once you get past the question of whether spousal maintenance should be paid, the focus shifts to how much and for how long. In this post, I deal with the question of how long a person should be required to pay spousal maintenance.

Determining the exact length of a maintenance obligation is difficult. While the law sets forth eight factors courts are supposed to consider when setting a maintenance award, often times, the analysis boils down to two things: the length of marriage and the ability of the recipient spouse to become self supporting at some point in the future.

Judges sometimes attempt to avoid the law's detailed analysis by using another measurement as a proxy. I have known at least one judge who simply divided the length of the parties' marriage by 2, and, presto, out popped the magic maintenance number. While this approach has absolutely no support in Minnesota law, it is frequently used by courts.

If it is difficult to determine exactly how long spousal maintenance will need to be paid, it is usually possible to group spousal maintenance awards into one of two categories: permanent spousal maintenance or temporary spousal maintenance. For some people, the labels themselves evoke an immediate emotional response. Spousal maintenance payors tend to be opposed to paying anything called "permanent maintenance." Spousal maintenance recipients are usually worried that "temporary maintenance" will be insufficient to meet their needs long-term. Yet, as emotionally troubling as these labels may seem, it is important to understand that "permanent spousal maintenance" is not always permanent and "temporary spousal maintenance" is not always temporary.

Permanent spousal maintenance simply means that the payor spouse bears the burden of proving that the terms of the maintenance award should be changed at some point in the future. In order to do this, the payor spouse would need to show a substantial change in circumstances since the time the original order was entered, and that this change has caused the existing order to be unreasonable and unfair. Examples of legitimate changes include things like retirement and unemployment.

By contrast, a temporary spousal maintenance award is for a fixed period of time. If the person receiving spousal maintenance wants to extend the award beyond the fixed term, they would need to show a substantial change in circumstances since the time the original order was entered, and that this change has caused continued maintenance to be required. The purpose of temporary spousal maintenance is to give the recipient time to become self supporting.

Between the two extremes of permanent spousal maintenance and temporary spousal maintenance, exist the new, more flexible "hybrid" type awards. These awards combine elements from both the permanent and temporary categories. Currently, there are two types of hybrid awards being used in Minnesota. The first type is a form of permanent spousal maintenance where the court imposes some kind of rehabilitative obligation on the recipient spouse. Thereafter, the court periodically reviews the award to determine if and when the spouse becomes self-supporting. This is significantly different from the traditional form of permanent spousal maintenance where the recipient spouse has no obligation to ever become self-supporting.

The second type of hybrid award is a form of temporary spousal maintenance (for a term of years), which is reviewed de novo - as if the court were awarding spousal maintenance for the first time -at the end of the term. This type of award avoids imposing burdens of proof on either party and is not seen as precedent setting. It gives the recipient spouse time to become self supporting, without disadvantaging either party. It is used most frequently when the dispute is not "if" a spouse will become self-supporting, but "when" it will occur.

In December 2009, the Minnesota Court of Appeals had the opportunity to address the question of whether it was proper for a trial court to use the hybrid form of temporary spousal maintenance. The case involved two people who had been married for 19 years. At the time of their divorce, the spousal maintenance recipient was employed, but was not earning income at a level sufficient to be self supporting. After a trial, the court found that while it was impossible to determine exactly when the spousal maintenance recipient would become self supporting, it was certain that she would do so at some point in the future. Thus, the court ordered the hybrid form of temporary spousal maintenance described above.

On appeal, the Minnesota Court of Appeals affirmed the trial court's decision, finding that it was acceptable to use the hybrid form of temporary spousal maintenance because it was certain that the recipient spouse would become self supporting at some point in the future.

The case is Maiers vs. Maiers, 775 N.W.2d 666 (Minn. Ct. App. 2009).