It’s been more than a year since new law went into effect, allowing a court to determine whether maintenance can be modified based on a recipient’s cohabitation with another adult following a dissolution of marriage.  But the law has not been changed, which requires that in order to modify a spousal maintenance award, a district court must find that there has been a substantial change in circumstances since the award went into effect, and, the award is unreasonable and unfair.  See Minn. Stat. § 518A.39, subd. 2(a).

While a maintenance award can be modified based on a recipient’s cohabitation with another adult, the act of cohabitation alone is not a reason to modify the maintenance award, if the cohabitation does not constitute a change in circumstances and does not make the maintenance award unreasonable and unfair. 

In 2016 Minnesota’s spousal maintenance law was changed to allow a court to modify maintenance based on cohabitation.  See Minn. Stat. §518.552, subd. 6.  Prior to its enactment, Minnesota courts had consistently held that mere cohabitation was insufficient to modify spousal maintenance. Abbott v. Abbott, 282 N.W.2d 561, 566 (Minn. 1979) (holding that cohabitation in itself is not a basis for termination or reduction of maintenance, except as it affects recipient’s economic wellbeing).

Minn. Stat. § 518.552, subd. 6 requires more than cohabitation alone. It requires the finding of at least some of the four factors that it lists:

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

(2) the economic benefit the recipient 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 recipient if maintenance is modified and the cohabitation ends.

It is unsettled by the courts how the two statutes (§518.552, subd. 6; §518A.39, subd. 2(a)) interact in addressing questions of modification of a maintenance award.  The two laws say different things. One law requires the court to find that a maintenance award is unreasonable and unfair, and the other law requires the court to look at the impact of the cohabitation on the recipient’s ability to meet his or her needs.

Since overlooking the impact of both statutes can be fatal to a request to modify maintenance,  it is important to be prepared to address both when seeking a modification of maintenance.  If the court agrees that circumstances have changed since the maintenance award was issued, and, that the award is unreasonable and unfair, the court can consider whether a recipient’s cohabitation impacts him or her in a way that makes the maintenance award less important to meeting the recipient’s needs.

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