Spousal Maintenance-Retirement
Hemmingsen v. Hemmingsen, 767 NW 2d 711 (Minn. App. 2009)
The parties were divorced after a 30 year marriage pursuant to a marital termination agreement which included a provision that husband pay $1,000.00 per month in maintenance to wife. In 2007, husband requested the Court end his maintenance obligation upon his 65th birthday, the date he claimed to have been fully retired from his real estate business. The Trial Court denied husband’s request to terminate his maintenance obligation and husband appealed. In addressing this request for modified maintenance, the Appellate Court noted that the party requesting the modification of maintenance bears the burden of proof of showing a substantial change in circumstances since the last time maintenance was modified or, if not previously modified, since the date it was originally set. If a change of circumstance is established, the moving party must next demonstrate that the change renders the original award unreasonable and unfair. Changed circumstances may include substantially increased or decreased income or expenses of either party.
In a situation where a party voluntarily creates a change of circumstance, the Court should consider that individual’s motives. If the change was made in good faith, then both parties should share in the hardship, as if the parties had remained together. On the other hand, where an opposing party raises a colorable claim of bad faith, the party requesting a modification must show be a preponderance of the evidence that a decision, such as to retire early, was not primarily influenced by a specific intent to decrease or terminate maintenance.
In a retirement situation, the Court should consider a party’s health and employment history, the availability of and expectations regarding early retirement at the time of the divorce, and the prevailing managerial policies and economic conditions at the time of retirement, together with whatever subjective reasons the party may offer.
In the Hemmingsen case, husband argued that when he retired at a normal or customary retirement age, his retirement should be presumed to be in good faith, as a matter of law, regardless of actual motivation, and that his retirement at age 65 should preclude a finding of bad faith. The Court of Appeals specifically disagreed. The Court stated that when a party seeks to modify or terminate maintenance and the other party raises a colorable claim of bad faith, there is s shift of the burden of proof and the Court must inquire as the motives for retirement.
The Court of Appeals did note that a retirement at a normal or customary retirement age does way strongly in favor of the finding of good faith but is not conclusive of good faith.