When negotiating spousal maintenance, there are many issues to consider. Tax implications, the amount of the monthly payment, the duration of monthly payments, and whether or not the issue of spousal maintenance can be readdressed in the future are some of the issues you must be aware of. This article will focus on the issue of whether or not you can address your spousal maintenance award or obligation after the issuance of the original order. This concept is known as "modification."

When negotiating spousal maintenance, you and your attorney should discuss this issue at length. For some parties, the issue of modification has significant financial importance. Generally speaking, an award of maintenance -- with no language limiting the amount or duration -- is always subject to modification. This means that the Court is able to entertain a request (by motion) of a party to change the amount or duration of a spousal maintenance award after the original order. The Court does not automatically grant these requests; however, as there are requirements that need to be satisfied before a prior order of maintenance will be modified. The statute addressing the requirements for modification is found in Minnesota Statutes Section 518A.39.

Below are some important options to consider when dealing with the issue of spousal maintenance:

• A reservation or award of maintenance with no language limiting the amount or duration is always subject to modification. For some parties this language is desirable, as they want the ability to "go back" to court in the future to ask the Court to review the current order to determine whether or not the amount should be increased, decreased, or terminated. As stated above, a modification of your prior award or obligation will not automatically be modified. You must satisfy the statutory requirements found in 518A.39. If you have lost your job through no fault of your own, if you have become temporarily disabled or unable to work due to illness, you would want to consider going back to have your spousal maintenance obligation or award reevaluated. These examples are non-exhaustive, as there are a host of other scenarios that you may find yourself in which would warrant a trip back to Court. You should consider the "what ifs" when negotiating spousal maintenance. If the parties are unable to agree on the issue of maintenance and the Court issues an award, that award falls under this category, and is subject to future review for modification purposes.
• An award of maintenance -- with language limiting the amount or duration -- is not subject to modification. For some, this type of spousal maintenance award or obligation is desirable. An order such as this, however, is always the creation of the parties. The language referring to the award of maintenance must be carefully crafted, however, as there are contractual concepts to consider. An appropriately crafted spousal maintenance award with language limiting the amount and/or duration is generally ironclad; meaning that the amount and duration is fixed and will remain intact regardless of any future changes in income or employment of either party. Assuming the language regarding the spousal maintenance obligation is contractually sound, the court will uphold and enforce the terms.
  
  Why would this be desirable? Well, for some parties the idea of a guaranteed amount of money for a guaranteed period of time is desirable. For the party receiving the money, they are able to budget their monthly expenses in a fashion that is predictable. Same for the party paying the money. Be careful here, as this type of agreement carries with it significant risk. These awards are generally ironclad and are non-modifiable. That is, if you lost your job -- even if it was through no fault of your own -- you will likely still be obligated to make the payments (or receive the negotiated amount) according to the original terms.

Which option described above is better for you depend on the facts of your particular case. Be sure to discuss these issues with your attorney early on in your case.

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Christopher M. Banas heads the family law department at Hellmuth & Johnson PLLC. He is a member of the Collaborative Law group. In 2007 and 2008, he was named to the Rising Star list by Minnesota Law & Politics Magazine, represented among the top 2.5% of young attorneys in the state. For more information on this and other matters.

Contact Christopher M. Banas at 952-746-2163 or or Visit Web Site