United States: "Alimony Reform" Comes To Minnesota (Maybe)

2016 may bring changes big and small to Minnesota's spousal maintenance (alimony) laws.

At the beginning of January, the Supreme Court heard oral arguments in Curtis v. Curtis—marking the first time in decades the Court will take up a case on establishing spousal maintenance. (More on that here.)

And our highest court may not be alone in thinking of 2016 as the year to take on maintenance. The legislative session beginning in March can expect to see at least one bill aimed at terminating spousal maintenance upon a recipient's "cohabitation."

The Cohabitation Debate

At its core, HF 1333, sponsored by Representative Peggy Scott last session, adds cohabitation as a new basis for terminating or suspending spousal maintenance—a list currently limited to either party's death or the recipient's remarriage. Though the bill was first brought forward in 2015, it didn't progress out of committee, and is expected to be introduced again this year.

This isn't the first time cohabitation and maintenance have made it onto the legislative radar. In 2010 SF 2362 (whose House companion was also sponsored by Representative Scott) provided for termination of maintenance if a recipient cohabited with an unrelated person of the opposite sex for 6 months.

But HF 1333 goes beyond it's predecessor—not only to recognize the existence of same-sex cohabitating relationships—but to create a detailed facts-and-circumstances test for determining what counts as cohabitation. The bill asks the Court to examine seven different factors in evaluating a claim of cohabitation, including:

(1) joint bank accounts, joint holdings, or other jointly held assets or liabilities including joint ownership in real estate;

(2) joint responsibilities for living expenses;

(3) recognition of the relationship with family and friends;

(4) whether or not the parties are living together, maintaining frequent contact, sharing household chores, or demonstrating other indicia of a mutually supportive intimate personal relationship;

(5) the duration of the relationship;

(6) whether or not the obligee has an enforceable promise of support from another person or has engaged in a commitment ceremony regardless of the legal significance; and

(7) other relevant evidence.

The statute then provides:

[T]he court shall not find an absence of cohabitation solely on the grounds that the obligee and the individual with whom the obligee cohabitates maintain separate residences or do not live together on a full-time basis

In other words, a court may find a "cohabitation relationship" as defined by statute, even if a maintenance recipient is not actually co-habitating, with someone else.

A National Trend

If HF 1333 passes, Minnesota would join more than a dozen other states that currently consider "cohabitation" in suspending or terminating a maintenance award.

According to a presentation given at the Fall Conference of the Family Law Section of the American Bar Association, as of 2014, seven states provided for "automatic" termination or suspension of maintenance in cases of cohabitation (Massachusetts, Illinois, North Carolina, Alabama, Arkansas, Louisiana, and Utah), and another three create a rebuttable presumption in favor of termination or suspension (Delaware, Virginia, and California).

Five more states provide relief at the discretion of the Court (Maine, New York, Georgia, Missouri, and Oklahoma); while two others (Tennessee and South Carolina) provide some combination of the above.

In doing a bit of my own research, I'd add New Jersey to the list as well, with the passage of its Alimony Reform Act in 2014.

Connecticut has a somewhat different model, permitting (but not requiring) termination of suspension if the recipient:

[I]s living with another person under circumstances which the court finds should result in the modification, suspension, reduction or termination of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs of the party.

Interestingly, this is essentially the Minnesota model already present in case law. See Mertens v. Mertens, 285 N.W.2d 490 (Minn. 1979); Sieber v. Sieber, 258 N.W.2d 754 (Minn. 1977)

Of course it's unfair to assume that termination based on cohabitation is the norm. A number of states don't even provide for automatic maintenance termination in the event of remarriage. (Looking at you Oregon.)

I Don't Think That Word Means What You Think it Means

While HF 1333 might be viewed as part of a national trend, the bill is most interesting for its almost Orwellian use of the word "cohabitation"–a term that connotes, to me at least, a residential, romantic relationship, "shacking up" as an earlier generation might have put it.

But HF 1333's 7-factor test hardly limits itself to live-in paramours.

A plain reading of the proposed statue could just as easily apply to maintenance recipients living platonically with a roommate, or with an adult child, or an elderly parent.

The bill even reaches beyond residential relationships, to consider "co-habitating" couples that don't actually live together.

Wait. What?

And this is where the bill becomes more problematic. If the test isn't strictly "living together" is it really our intention to ask family court judges to decide how many sleepovers is too many? How many dinners he paid for versus her? Who cleans and who cooks?

The law, in its current form at least, seems designed to prevent the cautious maintenance recipient from ever having a serious, romantic relationship for fear their primary means of support might vanish (without any guarantee a new partner will be willing or able to replace it).

One also begins to wonder about the amateur sleuthing that goes into proving such a loose definition of cohabitation:

[M]aintaining frequent contact, sharing household chores, or demonstrating other indicia of a mutually supportive intimate personal relationship

The statute veritably screams private investigator.

More to Come...

While the cohabitation bill may seem a somewhat modest proposal in comparison to reform efforts in Massachusetts or New Jersey, anyone reading the tea leaves should expect that–win or lose–amending our maintenance laws will remain on the legislature's radar.

Following the monumental changes to custody and parenting time in 2015, and anticipated changes to child support in 2016, spousal maintenance remains the most obvious candidate for reform.

And honestly, we need it.

Our spousal maintenance laws were last amended during the Reagan administration, and modeled on a fundamentally different vision of the family. They're cumbersome, unpredictable, and often don't reflect the realities of the 21st century family.

At least one group has emerged to lead the charge: MN Alimony Reform, founded by Michael Thomas, has developed an ambitious list of reforms modeled on recent efforts in New Jersey and Massachusetts. The groups efforts have yet to make their way into specific legislation, but include (according to its website):

Reform[ing] Permanent Spousal Maintenance [to encourage ex-spouses to become self-supporting];

Creat[ing] durational limits on spousal maintenance to a maximum of not longer than one-half of the marriage for able bodied individuals

Bas[ing] the amount of spousal maintenance awards on a "calculator" or "formula" similar to Minnesota's present child support system...

Reform[ing] Alimony laws to give specific guidelines, so they can be applied consistently regardless of the judge presiding, while allowing enough judicial discretion to protect the truly needy

Everyone should be entitled to retire. Alimony should end at the retirement age established by the Social Security Act

Cohabitation of the recipient of Maintenance shall terminate the payor's obligation, just as death or remarriage currently do. Minnesota law should encourage marriage in a time when marriage rates are declining and cohabitation is increasing.

All of the above are certainly reasonable concerns from the perspective of a maintenance payor. Notably absent, however, are reforms that recognize the economic value of caregiving to a family, and the very real economic sacrifices many spouses make to provide that care.

If the true aim of advocates is "reform"–rather than simply reduced maintenance awards–a more balanced approach is needed. One would hope to see the goals of increased predictability and a more rational treatment of retirement balanced against a real concern for the financial security of spouses who take on the burdens and sacrifices of caregiving.

Reform, then, isn't just about reducing payments to former spouses, but about encouraging both spouses to achieve self-sufficiency upon divorce, while recognizing the very real barriers that exist for caregivers. In short, a law that appreciates the contributions of both spouses, and doesn't expect a spouse to place herself (or himself) at economic risk by raising the next generation.

This would be true reform.

Maybe it's time for another dialogue group.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions