Maintenance

A Rule In Search Of A Rationale

Legislative Proposition

R.S. Mo. 452.335 is hereby repealed

Cox v. Cox Long-term marriage and substantial

disparity between the parties' incomes. The ex-wife challenged the trial judge’s decision that provided limited duration alimony in the amount of $200 per week for a period of five years “to enable the plaintiff to establish herself as an attorney.”

Partnership Theory

The court says that a marriage is a “partnership,” and the “married couple forms an economic unit. The contributions of both . . . Are valuable regardless of whether the contributions are financial or non financial.” What are the alimony implications of this policy?

Contributions

The court also says that “a transfer of earning power” occurs during a traditional marriage in which the homemaker spouse’s efforts increased the other’s earning capacity at the expense of her own. Do you agree?

Predicting a maintenance award Is compensation for income differentials

a basis for maintenance? Should maintenance be based on

income at end of marriage or average of marriage?

Should maintenance be based on earnings or earning capacity?

Should alimony be used for compensation for contributions?

 Maintenance under 452.335 Property division first Standard: “Reasonable needs plus

Inability to support” Custodian of a child who needs

care

What are reasonable needs? What is wife’s reasonable need? What rationale supports an award? Should the award be permanent or

temporary?

Ability to meet needs Role of property distribution? Earnings or ability? Impact of custody of child who

needs care?

The Role of Fault All courts have limited role of fault

(“financial cost” rules) Missouri considers fault in both

property distribution and in maintenance

Must show actual burden on spouse

Christian v. Christian Divorce action included tort and

punitive damage claims. Ex-wife awarded alimony, attorneys’

fees and costs, a permanent injunction, $20,000 for intentional infliction of emotional distress; and punitive damages.

Considering Tort Claims as an Alternative

Was the IIED claim justified? What are its limits?

Were punitive damages justified? What are its limits?

Haugan v. Haugan

Married – 1973 Supports couple 73-77 Teaches until 1980 –

resigns Green Bay – purchase

house Unemployed; then

IBM Annual salary $19,680

1973 – H enters medical school

Residency – 77 – 80 $49,00 aggregate

1980 purchase house

Annual salary $55,498

Valuing Contributions

Cost value –Supporting spouse’s contributions in terms of money and services

Opportunity costs – sacrificed income because of schooling (here $45,700)

PV of student spouse’s enhanced earning capacity

One-half earning capacity x years of support

Maintenance Forms     Open ended or Terminable? Modifiable or Non-modifiable? Decretal or Contractual?

Indefinite (open-ended) maintenance Standard Modification? Termination?

Limited Duration Standard: Substantial evidence

that future events will occur that change need

Modification Termination

Maintenance in gross Lump sum award, payable at one

time or installments Difference from division of marital

property Problem: true maintenance in

gross never terminated No statutory authority in Missouri,

but case law has permitted

Decretal v. Contractual Set by court upon

factors Generally

modifiable Enforced as a

judgment (procedures, devices, etc.)

Agreed between parties

Modifiable on contract terms

Enforced as a contract (contract remedies, defenses, etc.)

Combined Forms Separation agreement is

incorporated into the decree Decretal for purposes of

enforcement Contractual for purposes of

modification

Standard Changed circumstances so

substantial and continuing as to make the terms unreasonable

Changes in income Failure to seek employment Remarriage/cohabitation

    Termination     452.370.2 Unless otherwise agreed in writing

or expressly provided in decree - maintenance terminated at death or remarriage

What is the effect of cohabitation?

Drafting of Maintenance Provisions: Make clear the distinctions

between child support & maintenance

Be clear about what type of maintenance is envisioned

Specify modification and termination terms

Haugen v. Haugen Approaches different legal systems

take to the treatment of maintenance where the partner seeking an award has continued working outside the home while the other partner has obtained an education that will significantly increase the latter’s income once employed.