Alimony reform: Minnesota’s new cohabitation law

Law_books_01A new Minnesota law effective August 1, 20161 authorizes a court, upon motion, to treat a former spouse’s cohabitation after a divorce as a reason to modify or even terminate the other former spouse’s maintenance (alimony) obligation.

Basics of the new law

The new law authorizes a court to terminate, suspend, reserve or reduce a spousal maintenance obligation if the payor files a motion and proves that the recipient spouse is cohabiting with someone.

Not automatic

The modification is not automatic. A party seeking to invoke the benefit of the law must file a motion in court.

A court may modify maintenance based on cohabitation only after considering the following:

  • whether the obligee would marry the cohabitant but for the maintenance award;
  • the economic benefit the obligee derives from the cohabitation;
  • the length of the cohabitation and the likely future duration of the cohabitation; and
  • the economic impact on the obligee if maintenance is modified and the cohabitation ends.

Cohabitation with relatives not impacted

The new law only applies to cohabitation with a person that a former spouse could marry without violating the prohibition against incestuous marriages. Moving in with a close relative should have no effect on alimony.

Private agreements

Parties to a divorce may prevent courts from modifying maintenance on the basis of post-divorce cohabitation by including a clause to that effect in their stipulated divorce judgment.

Waiting period

A motion to modify on the basis of cohabitation may not be brought earlier than one year after entry of the divorce decree unless both parties otherwise agree in writing, or in cases of extreme hardship.


Burden on courts

Some critics worry that courts will be flooded with modification motions as a result of the new law. This kind of criticism, however, exalts judicial convenience over fairness. Since the only legitimate function of a justice system is to promote fairness in society, arguments to the effect that judges should not have to trouble themselves with fairness are not especially persuasive.

Intrusion on privacy

When deciding a cohabitation modification motion, a court will be required to consider, among other things, “whether the obligee would marry the cohabitant but for the maintenance award” and “the likely future duration of the cohabitation.” How will a court decide these things? It would seem that evidence of the parties’ motives and intentions — as discerned from their private email, letters and conversations, for example — would be relevant and admissible on these issues. If so, then the bounds of discovery would seem to be almost limitless. An alimony recipient who is concerned about privacy is not without recourse, however, She (or her cohabitant) can request an appropriate discovery protective order.


The new law is subject to the same two criticisms to which the “best interests of the child” custody standard is vulnerable: (1) undefined terms; and (2) absence of an unambiguous standard for weighing the factors relative to each other. For example, a court is directed to consider the “length” of the cohabitation, but no guidance is given about what should be considered a long period of cohabitation. Nor are courts given any hints about what they are supposed to do with such a determination. Is a court to view a lengthy period of cohabitation as circumstantial evidence of continuing need (dependence on a roommate to share expenses) or as evidence that the cohabitation is similar to a common law marriage? Ambiguities like these make different legal outcomes under the same set of facts likely.

Discrimination against remarried persons

Minnesota law provides for the termination of maintenance upon a recipient spouse’s remarriage, unless a court has previously ordered, or the parties have agreed, otherwise.2 The termination is automatic. Unlike a cohabiting former spouse, a former spouse who remarries is not given an opportunity to object or to explain to a court why maintenance should merely be reduced or suspended rather than terminated altogether. Why should courts be required to consider the economic impact on the obligee if maintenance is modified and the cohabitation ends, while not giving any consideration at all to the economic impact on the obligee if maintenance is modified (or terminated) and the remarriage ends?

Discrimination against unrelated cohabitants

The new law only triggers a potential loss or reduction of maintenance if a recipient moves in with a person s/he could legally marry. This distinction does not seem to be rationally related to the modern function of maintenance, which is to ensure that a former spouse’s needs (as measured by the standard of living during the marriage) continue to be met after a divorce. Except in the case of parents and children, or people who have been awarded custody of a relative, people do not have any greater legal responsibility to support relatives than friends. A person who shares expenses with a roommate will have the same needs (or lack thereof) whether the roommate is a relative or an unrelated friend.

The new law also appears to impose an unequal burden on cohabitants relative to non-cohabiting paramours, and this unequal burden does not appear to be rationally related to the modern needs-based function of maintenance. Why should the former spouse of a person whose new lover is paying all of her expenses have to wait until her new lover actually moves in with her before he may bring a motion to modify or terminate maintenance? The person has the same diminished need for maintenance in both scenarios.

The future of alimony reform

Over the next few years, courts and legislators may be expected to add clarifying content to the new law. Ultimately, though, fundamental reconsideration of the place of alimony in a modern egalitarian society is what is really needed.

Historical origins

The concept of alimony is of ancient origin, dating back to earliest recorded history.3 For thousands of years, only men were legally obligated to support their spouses upon marriage, and the obligation extended to situations in which a wife became separated from her husband through no fault of her own.4

At a time when married women had few legal rights, were not protected from discrimination in employment, and could not secure credit in their own names, it was imminently fair for the law to impose an obligation on husbands to support the women they married. It made sense to impose support obligations on married men as the quid pro quo for a married woman’s relinquishment of rights to them through coverture.

The fault element was intended to ensure the fairness of the system. A husband would not be permitted to avoid his support obligation by abandoning his wife and/or by giving her grounds for divorce by cheating on her. By the same token, a wife who unjustifiably abandoned or cheated on her husband would not be entitled to continue to receive money from him. As in ordinary contract law, the breaching party – of either sex — would not be permitted to profit from his or her own unjustified breach of the contract.

Current rationale for alimony

The legal system that gave rise to the concept of alimony has been fundamentally altered. The system of coverture has been abolished; women have been given equal legal status under the law; and in most jurisdictions, the concept of fault has been removed from divorce. Supreme Court decisions and civil rights acts in the 1970’s have removed the legal impediments to women’s employment, credit, and independence. In short, the original reasons and justifications for alimony no longer exist.

Currently, the only rationale for alimony that courts and commentators provide is that one or the other spouse may not have an ability to be self-supporting after a divorce.

Edifice without a foundation

There does not appear to be any doctrinal basis rooted in justice or fairness for the concept that one person should be required to support another person financially after the other person unjustifiably breaches the marriage contract. The only doctrinal bases that courts and commentators cite are grounded in unreflective stare decisis sustained by little else than a Marxist belief that courts should take from people according to their ability and give to others according to their need.

That belief, however, could equally be applied to unmarried cohabitants who decide to part ways, since in almost every case one of them will have higher income and the other will have greater need. Yet courts (in most states) will not apply Marxist principles to require separating cohabitants to continue to support each other financially. Now that coverture has been abolished, what constitutionally significant aspect of marriage is it that still makes it fair and nondiscriminatory that a couple that lives together without benefit of marriage can part ways without either of them risking being required to provide for the needs of the other while married couples cannot?

If it is suggested that the obligation is voluntarily assumed as part of the marriage contract, then why is the promise to continue to support each other financially — even if one or the other unjustifiably leaves the marriage – never mentioned in the vows that couples exchange during marriage ceremonies?

Of course, not all contractual obligations are expressly stated. Some are implied. But why should the law assume that two able-bodied, rational adults with equal employment opportunities under the law implicitly agree that either of them may unilaterally choose to avoid working during the marriage and then demand that the other continue to subsidize that decision even after s/he leaves the marriage – whether the departure is justifiable or not?

And now that fault has been removed from divorce law, what exactly is the consideration that one spouse gives for the other’s promise of life-long financial support? Access to sexual gratification can’t be it. Prostitution is against public policy. Companionship? Roommates provide that to each other, too, but courts generally do not impose an implied obligation on roommates to provide life-long financial support to each other in exchange for their friendship. Obligations of loyalty, love, fidelity? With the advent of no-fault divorce, the law does not treat these as enforceable parts of the marriage contract.

Statute of frauds

Some guidance about the future of alimony reform might be gleaned from so-called “statutes of frauds.”

Most jurisdictions, although generally enforcing oral and implied contracts, have enacted statutes requiring certain kinds of contracts to be in writing in order to be enforceable. These laws are designed to prevent misunderstandings and false claims about the agreement, if any, the parties intended to make. Typically included within the coverage of these statutes are long-term contracts (e.g., contracts longer than one year) and promises given in consideration of marriage.5 An argument could be made that a promise to pay alimony in the event of a divorce should be required to be in writing in order to be enforceable, at least to the extent it represents an obligation to provide financial support to a spouse who unjustifiably breaches the marriage contract. (A no-fault state may prefer to make the requirement applicable to every alimony obligation.) Like any other statute of frauds, such a requirement could help prevent false claims and misunderstandings about the spouses’ respective responsibilities in the event of a divorce. At the same time, it would bring family law into harmony with basic precepts of contract law, constitutional law, and the modern legal status of women.

  1. codified at Minn. Stat. § 518.552, subd. 6
  2. Minn. Stat. § 518A.39.
  3. See, e.g., Hammurabi Code 137 (1754 B.C.); see also the Justinian Code (ca. 534 A.D.)
  4. Id.; see also Chester G. Vernier and John B. Hurlbut, The Historical Background of Alimony Law and its Present Statutory Structure, 6 Law & Contemp. Prob. 197, 198 (Spring, 1939).
  5. See, e.g., Minn. Stat. § 513.01.