HF 4631

as introduced - 91st Legislature (2019 - 2020) Posted on 05/05/2020 08:21pm

A bill for an act
relating to domestic relations; modifying provisions regarding spousal maintenance;
amending Minnesota Statutes 2018, sections 518.131, by adding subdivisions;
518.552; 518A.39, subdivisions 1, 2; repealing Minnesota Statutes 2018, sections
518.131, subdivision 11; 518A.39, subdivision 3.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2018, section 518.131, is amended by adding a subdivision
to read:

new text begin Subd. 11. new text end

new text begin Presumption regarding temporary maintenance. new text end

new text begin During the pendency of
a dissolution or legal separation, it is presumed that the court should award temporary
maintenance to a spouse who would qualify for an award of maintenance under section
518.552.
new text end

Sec. 2.

Minnesota Statutes 2018, section 518.131, is amended by adding a subdivision to
read:

new text begin Subd. 12. new text end

new text begin Effective date of award of temporary support or maintenance. new text end

new text begin In a
temporary order issued under this section or in the final decree, an award of temporary
support or temporary maintenance during the pendency of a marriage dissolution or legal
separation proceeding may be effective as early as the date that the proceeding commenced.
In determining whether to issue an award with an effective date as early as the
commencement of the proceeding, and the amount to be awarded, the court shall consider
the applicable factors set forth in chapter 518A and section 518.552 and the extent to which
the needs of the children and the parties were met during the pendency of the proceeding.
new text end

Sec. 3.

Minnesota Statutes 2018, section 518.131, is amended by adding a subdivision to
read:

new text begin Subd. 13. new text end

new text begin Payment of temporary costs and reasonable attorney fees. new text end

new text begin During the
pendency of a marriage dissolution or legal separation proceeding, it is presumed that the
court should award temporary costs and reasonable attorney fees to a spouse who otherwise
lacks immediate access to sufficient income or assets to pay attorney fees and costs. The
court will thereby ensure that the parties have comparable resources to pay for the dissolution
or legal separation proceeding. In making this determination, the court will consider each
party's comparative income and assets during the pendency of the proceeding, including
each party's debt financing and third-party resources. Nothing in this subdivision is intended
to limit a party's ability to seek temporary attorney fees and costs from the other party under
section 518.14.
new text end

Sec. 4.

Minnesota Statutes 2018, section 518.552, is amended to read:

518.552 MAINTENANCE.

Subdivision 1.

Grounds.

In a proceeding for dissolution of marriage or legal separation,
or in a proceeding for maintenance following dissolution of the marriage by a court which
lacked personal jurisdiction over the absent spouse and which has since acquired jurisdiction,
the court may grant a maintenance order for either spouse if it finds that the spouse seeking
maintenance:

deleted text begin (a) deleted text end new text begin (1) new text end lacks sufficient property, including marital property apportioned to the spouse,
to provide for reasonable needs of the spouse considering the standard of living established
during the marriage, deleted text begin especially, deleted text end new text begin including new text end but not limited to deleted text begin , deleted text end a period of training or education deleted text begin ,
or deleted text end new text begin ;
new text end

deleted text begin (b) deleted text end new text begin (2) new text end is unable to provide adequate self-support, after considering the standard of living
established during the marriage and all relevant circumstances deleted text begin , through appropriate
employment, deleted text end new text begin ; new text end or

new text begin (3) new text end is the custodian of a child whose condition or circumstances make it appropriate that
the custodian not be required to seek employment outside the home.

Subd. 2.

deleted text begin Amount; deleted text end new text begin Factors in determining the amount and new text end duration new text begin of
maintenance new text end .

The maintenance order shall be in amounts and for periods of time deleted text begin , either
temporary or permanent, deleted text end as the court deems just, without regard to marital misconduct, and
after considering all relevant factors including:

deleted text begin (a) deleted text end new text begin (1) new text end the financial resources of the party seeking maintenance deleted text begin , including marital property
apportioned to the party, deleted text end and the party's ability to meet needs independently, including the
extent to which a provision for support of a child living with the party includes a sum for
that party as custodian;

deleted text begin (b) deleted text end new text begin (2) new text end the time new text begin and expense new text end necessary to acquire sufficient education or training to
enable the party seeking maintenance to find appropriate employment, and the probability,
given the party's age and skills, of completing education or training and becoming fully or
partially self-supporting;

deleted text begin (c) deleted text end new text begin (3) new text end the standard of living established during the marriage new text begin and the extent to which the
standard of living was funded by debt new text end ;

deleted text begin (d) deleted text end new text begin (4) new text end the duration of the marriage and deleted text begin , in the case of a homemaker, deleted text end new text begin the spouse's foregone
earnings, seniority, benefits, and other employment opportunities to support the other spouse
or children and new text end the length of absence from employment and the extent to which any
education, skills, or experience have become outmoded and earning capacity has become
permanently diminished;

deleted text begin (e) the loss of earnings, seniority, retirement benefits, and other employment opportunities
forgone by the spouse seeking spousal maintenance;
deleted text end

deleted text begin (f) deleted text end new text begin (5) new text end the age, deleted text begin and the deleted text end physical deleted text begin and emotional condition of the spouse seeking
maintenance deleted text end new text begin , mental, or chemical health of both spouses new text end ;

deleted text begin (g) deleted text end new text begin (6) new text end the ability of the spouse from whom maintenance is sought to meet needs while
meeting those of the spouse seeking maintenance; deleted text begin and
deleted text end

deleted text begin (h) deleted text end new text begin (7) new text end the contribution of deleted text begin each party in the acquisition, preservation, depreciation, or
appreciation in the amount or value of the marital property, as well as the contribution of a
spouse as a homemaker or deleted text end new text begin a spouse new text end in furtherance of the other party's employment or
business deleted text begin . deleted text end new text begin ; and
new text end

new text begin (8) the need and ability of each spouse to prepare for retirement and the anticipated time
of retirement.
new text end

Subd. 3.

deleted text begin Permanency of award deleted text end new text begin Presumptions for the duration of
maintenance new text end .

deleted text begin Nothing in this section shall be construed to favor a temporary award of
maintenance over a permanent award, where the factors under subdivision 2 justify a
permanent award.
deleted text end

deleted text begin Where there is some uncertainty as to the necessity of a permanent award, the court shall
order a permanent award leaving its order open for later modification.
deleted text end

new text begin (a) A maintenance award may be transitional or indefinite. If a court awards temporary
maintenance before the effective date of this statute, it is deemed transitional maintenance.
If a court awards permanent maintenance before the effective date of this statute, it is deemed
indefinite maintenance. If a court awards maintenance during the pendency of an initial
dissolution or legal separation proceeding pursuant to section 518.131, it is deemed temporary
maintenance.
new text end

new text begin (b) For purposes of this subdivision, "length of the marriage" shall mean the period from
the date of marriage until the commencement date of the action.
new text end

new text begin (c) In determining the appropriate duration of maintenance, the court shall consider:
new text end

new text begin (1) when the length of the marriage is less than five years, it is rebuttably presumed that
the court should award no maintenance;
new text end

new text begin (2) when the length of the marriage is five years and less than 20 years, it is rebuttably
presumed that the court should award transitional maintenance with a duration of no longer
than one-half of the length of the marriage if the factors set forth in subdivision 1 support
awarding maintenance; and
new text end

new text begin (3) when the length of the marriage is 20 years or more, it is rebuttably presumed that
the court should award indefinite maintenance if the factors set forth in subdivision 1 support
awarding maintenance.
new text end

Subd. 4.

Reopening maintenance awards.

Section 518.145, subdivision 2, applies to
awards of spousal maintenance.

Subd. 5.

Private agreements.

The parties may expressly preclude or limit modification
of maintenance through a stipulation, if the court makes specific findings that the stipulation
is fair and equitable, is supported by consideration described in the findings, and that full
disclosure of each party's financial circumstances has occurred. The stipulation must be
made a part of the judgment and decree or a post-decree stipulated order. The parties may
restore the court's authority or jurisdiction to award or modify maintenance through a binding
stipulation.

new text begin Subd. 5a. new text end

new text begin Maintenance on death or remarriage. new text end

new text begin Unless otherwise agreed upon in
writing or expressly provided in the decree, the party's obligation to pay future maintenance
terminates upon the death of either party or the remarriage of the party receiving maintenance.
new text end

new text begin Subd. 5b. new text end

new text begin Modification. new text end

new text begin (a) Upon either party's motion, the court may modify the amount
and duration of maintenance and may issue an order it might have issued in the original
proceeding, except as otherwise provided in this subdivision.
new text end

new text begin (b) The court may modify the terms of a maintenance order upon a showing of one or
more of the following, which renders the terms of the existing order unreasonable and unfair:
new text end

new text begin (1) a substantial increase or decrease to the gross income of the obligor or obligee;
new text end

new text begin (2) a substantial increase or decrease to the financial need of an obligor or obligee; or
new text end

new text begin (3) a substantial change in the federal or state tax laws which affect spousal maintenance.
new text end

new text begin (c) Upon a party's motion to modify maintenance, including a motion for the extension
of the duration of a maintenance award, the court shall apply, in addition to all other relevant
factors, the factors for an award of maintenance under subdivisions 1 to 3 that exist at the
time of the motion.
new text end

new text begin (d) A modification of maintenance, including interest that accrued pursuant to section
548.091, may be retroactive from the date that notice of the motion was served on the
responding party and on the public authority if the obligee is receiving public assistance or
the county attorney is the attorney of record, unless the court adopts an alternative effective
date under paragraph (f). The court's adoption of an alternative effective date under paragraph
(f) shall not be considered a retroactive modification of maintenance.
new text end

new text begin (e) The court need not hold an evidentiary hearing on a motion of modification of
maintenance.
new text end

new text begin (f) The court may select an alternative effective date for the maintenance order if the
parties enter into a binding agreement for an alternative effective date.
new text end

Subd. 6.

Cohabitation.

(a) Spousal maintenance may be modified pursuant to deleted text begin section
518A.39, subdivision 2, deleted text end new text begin subdivision 7 new text end based on the cohabitation by the maintenance obligee
with another adult following dissolution of the marriage. The modification may consist of
a reduction, suspension, reservation, or termination of maintenance. In determining if
maintenance should be modified due to cohabitation, the court shall consider:

(1) whether the obligee would marry the cohabitant but for the maintenance award;

(2) the economic benefit the obligee derives from the cohabitation;

(3) the length of the cohabitation and the likely future duration of the cohabitation; and

(4) the economic impact on the obligee if maintenance is modified and the cohabitation
ends.

(b) The court must not modify a maintenance award based solely on cohabitation if a
marriage between the obligee and the cohabitant would be prohibited under section 517.03,
subdivision 1, clause (2) or (3). A modification under this subdivision must be precluded
or limited to the extent deleted text begin the parties have entered into a private agreement under subdivision
5 deleted text end new text begin provided in that agreement new text end .

(c) A motion to modify a spousal maintenance award on the basis of cohabitation may
not be brought within one year of the date of entry of the decree of dissolution or legal
separation that orders spousal maintenance, unless the parties have agreed in writing that a
motion may be brought or the court finds that failing to allow the motion to proceed would
create an extreme hardship for one of the parties.

new text begin Subd. 7. new text end

new text begin Retirement. new text end

new text begin (a) In the event of either party's retirement, the court may modify
spousal maintenance. The modification of maintenance may consist of a change in the
amount, suspension, reservation, or termination of maintenance.
new text end

new text begin (b) In determining whether the court should modify maintenance due to a party's
retirement, the court shall consider:
new text end

new text begin (1) whether the party's retirement is in good faith or is an unjustifiable self-limitation of
income;
new text end

new text begin (2) whether the party has attained the age to receive the party's full retirement benefits
under section 216 of the Social Security Act, United States Code, title 42, section 416, or
the customary age for retirement in the party's occupation; and
new text end

new text begin (3) whether a party has reasonably and prudently managed the party's assets since the
dissolution of the marriage.
new text end

new text begin (c) There is a rebuttable presumption that a party has retired in good faith and has not
unjustifiably self-limited the party's income if the party's retirement occurs on or after the
party attains the age to receive full retirement benefits under section 216 of the Social
Security Act, United States Code, title 42, section 416, or the customary age for retirement
in the party's occupation.
new text end

new text begin (d) If a court determines that modification is appropriate, the court shall apply the factors
in subdivision 2 to determine the amount and duration of maintenance.
new text end

new text begin (e) Before a party retires, a party may bring a motion to modify maintenance due to
retirement, provided that the moving party specifies the date by which the party's retirement
will occur. The court may then order the modification to be effective from the date of
retirement.
new text end

new text begin Subd. 8. new text end

new text begin Form. new text end

new text begin The state court administrator's office shall prepare and make available
to court administrators, obligors, and persons to whom spousal maintenance is owed, a form
to submit in support of a motion for modifying an order for maintenance or for contempt
of court.
new text end

Sec. 5.

Minnesota Statutes 2018, section 518A.39, subdivision 1, is amended to read:

Subdivision 1.

Authority.

After an order under this chapter or chapter 518 for
deleted text begin maintenance or deleted text end support money, temporary or permanent, or for the appointment of trustees
to receive property awarded as deleted text begin maintenance or deleted text end support money, the court may from time to
time, on motion of either of the parties, a copy of which is served on the public authority
responsible for child support enforcement if payments are made through it, or on motion
of the public authority responsible for support enforcement, modify the order respecting
the amount of deleted text begin maintenance or deleted text end support money or medical support, and the payment of it,
and also respecting the appropriation and payment of the principal and income of property
held in trust, and may make an order respecting these matters which it might have made in
the original proceeding, except as herein otherwise provided. A party or the public authority
also may bring a motion for contempt of court if the obligor is in arrears in support deleted text begin or
maintenance deleted text end payments.

Sec. 6.

Minnesota Statutes 2018, section 518A.39, subdivision 2, is amended to read:

Subd. 2.

Modification.

(a) The terms of an order respecting deleted text begin maintenance or deleted text end support
may be modified upon a showing of one or more of the following, any of which makes the
terms unreasonable and unfair: (1) substantially increased or decreased gross income of an
obligor or obligee; (2) substantially increased or decreased need of an obligor or obligee or
the child or children that are the subject of these proceedings; (3) receipt of assistance under
the AFDC program formerly codified under sections 256.72 to 256.87 or 256B.01 to 256B.40,
or chapter 256J or 256K; (4) a change in the cost of living for either party as measured by
the federal Bureau of Labor Statistics; (5) extraordinary medical expenses of the child not
provided for under section 518A.41; (6) a change in the availability of appropriate health
care coverage or a substantial increase or decrease in health care coverage costs; (7) the
addition of work-related or education-related child care expenses of the obligee or a
substantial increase or decrease in existing work-related or education-related child care
expenses; or (8) upon the emancipation of the child, as provided in subdivision 5.

(b) It is presumed that there has been a substantial change in circumstances under
paragraph (a) and the terms of a current support order shall be rebuttably presumed to be
unreasonable and unfair if:

(1) the application of the child support guidelines in section 518A.35, to the current
circumstances of the parties results in a calculated court order that is at least 20 percent and
at least $75 per month higher or lower than the current support order or, if the current support
order is less than $75, it results in a calculated court order that is at least 20 percent per
month higher or lower;

(2) the medical support provisions of the order established under section 518A.41 are
not enforceable by the public authority or the obligee;

(3) health coverage ordered under section 518A.41 is not available to the child for whom
the order is established by the parent ordered to provide;

(4) the existing support obligation is in the form of a statement of percentage and not a
specific dollar amount;

(5) the gross income of an obligor or obligee has decreased by at least 20 percent through
no fault or choice of the party; or

(6) a deviation was granted based on the factor in section 518A.43, subdivision 1, clause
(4), and the child no longer resides in a foreign country or the factor is otherwise no longer
applicable.

(c) A child support order is not presumptively modifiable solely because an obligor or
obligee becomes responsible for the support of an additional nonjoint child, which is born
after an existing order. Section 518A.33 shall be considered if other grounds are alleged
which allow a modification of support.

(d) If child support was established by applying a parenting expense adjustment or
presumed equal parenting time calculation under previously existing child support guidelines
and there is no parenting plan or order from which overnights or overnight equivalents can
be determined, there is a rebuttable presumption that the established adjustment or calculation
will continue after modification so long as the modification is not based on a change in
parenting time. In determining an obligation under previously existing child support
guidelines, it is presumed that the court shall:

(1) if a 12 percent parenting expense adjustment was applied, multiply the obligor's
share of the combined basic support obligation calculated under section 518A.34, paragraph
(b), clause (5), by 0.88; or

(2) if the parenting time was presumed equal but the parents' parental incomes for
determining child support were not equal:

(i) multiply the combined basic support obligation under section 518A.34, paragraph
(b), clause (5), by 0.75;

(ii) prorate the amount under item (i) between the parents based on each parent's
proportionate share of the combined PICS; and

(iii) subtract the lower amount from the higher amount.

(e) deleted text begin On a motion for modification of maintenance, including a motion for the extension
of the duration of a maintenance award, the court shall apply, in addition to all other relevant
factors, the factors for an award of maintenance under section 518.552 that exist at the time
of the motion. deleted text end On a motion for modification of support, the court:

(1) shall apply section 518A.35, and shall not consider the financial circumstances of
each party's spouse, if any; and

(2) shall not consider compensation received by a party for employment in excess of a
40-hour work week, provided that the party demonstrates, and the court finds, that:

(i) the excess employment began after entry of the existing support order;

(ii) the excess employment is voluntary and not a condition of employment;

(iii) the excess employment is in the nature of additional, part-time employment, or
overtime employment compensable by the hour or fractions of an hour;

(iv) the party's compensation structure has not been changed for the purpose of affecting
a support or maintenance obligation;

(v) in the case of an obligor, current child support payments are at least equal to the
guidelines amount based on income not excluded under this clause; and

(vi) in the case of an obligor who is in arrears in child support payments to the obligee,
any net income from excess employment must be used to pay the arrearages until the
arrearages are paid in full.

(f) A modification of deleted text begin support or deleted text end maintenance, including interest that accrued pursuant
to section 548.091, may be made retroactive only with respect to any period during which
the petitioning party has pending a motion for modification but only from the date of service
of notice of the motion on the responding party and on the public authority if public assistance
is being furnished or the county attorney is the attorney of record, unless the court adopts
an alternative effective date under paragraph (l). The court's adoption of an alternative
effective date under paragraph (l) shall not be considered a retroactive modification of
deleted text begin maintenance or deleted text end support.

(g) Except for an award of the right of occupancy of the homestead, provided in section
518.63, all divisions of real and personal property provided by section 518.58 shall be final,
and may be revoked or modified only where the court finds the existence of conditions that
justify reopening a judgment under the laws of this state, including motions under section
518.145, subdivision 2. The court may impose a lien or charge on the divided property at
any time while the property, or subsequently acquired property, is owned by the parties or
either of them, for the payment of maintenance or support money, or may sequester the
property as is provided by section 518A.71.

(h) The court need not hold an evidentiary hearing on a motion for modification of
deleted text begin maintenance or deleted text end support.

(i) Sections 518.14 and 518A.735 shall govern the award of attorney fees for motions
brought under this subdivision.

(j) An enactment, amendment, or repeal of law constitutes a substantial change in the
circumstances for purposes of modifying a child support order when it meets the standards
for modification in this section.

(k) On the first modification following implementation of amended child support
guidelines, the modification of basic support may be limited if the amount of the full variance
would create hardship for either the obligor or the obligee. Hardship includes, but is not
limited to, eligibility for assistance under chapter 256J.

(l) The court may select an alternative effective date for a deleted text begin maintenance or deleted text end support order
if the parties enter into a binding agreement for an alternative effective date.

Sec. 7. new text begin REPEALER.
new text end

new text begin Minnesota Statutes 2018, sections 518.131, subdivision 11; and 518A.39, subdivision
3, new text end new text begin are repealed.
new text end

APPENDIX

Repealed Minnesota Statutes: 20-6065

518.131 TEMPORARY ORDERS AND RESTRAINING ORDERS.

Subd. 11.

Temporary support and maintenance.

Temporary support and maintenance may be ordered during the time a parenting plan is being developed under section 518.1705.

518A.39 MODIFICATION OF ORDERS OR DECREES.

Subd. 3.

Maintenance on death or remarriage.

Unless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated upon the death of either party or the remarriage of the party receiving maintenance.