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STATE OF MINNESOTA DISTRICT COURT COUNTY OF       JUDICIAL DISTRICT FAMILY COURT DIVISION In Re the Marriage of: Court File No. , Petitioner, MEMORADUM OF LAW AND , Respondent, STATEMENT OF FACTS ISSUES WHETHER PETITIONER/RESPONDENT IS ENTITLED TO AN AWARD OF MAINTENANCE? DISCUSSION YES/NO, PETITIONER/RESPONDENT IS/IS NOT ENTITLED TO AN AWARD OF MAINTENANCE. Minnesota Statute Section 518.552 provides that a spouse is entitled to maintenance in dissolution of marriage proceeding if the spouse (a) Lacks sufficient property, including marital property apportioned to the spouse, to provide for reasonable needs of the spouse considering the standard of living established during the marriage, especially, but not limited to, a period of training or education, or (b) Is unable to provide adequate self-support, after considering the standard of living established during the marriage and all relevant circumstances, through appropriate employment, or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home. - 1 - Minn. Stat. Ann. ?518.552, subd. 1 (West 1990). The statute requires that an award of maintenance be based on all relevant factors including, but not limited to the following: (a) the financial resources of the party seeking maintenance, including marital property apportioned to the party, and the party's ability to meet needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian; (b) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, and the probability, given the party's age and skills, of completing education or training and becoming fully or partially self-supporting; (c) the standard of living established during the marriage; (d) the duration of the marriage and, in the case of a homemaker, the length of absence from employment and the extent to which any education, skills, or experience have become outmoded and earning capacity has become permanently diminished; (e) the loss of earnings, seniority, retirement benefits, and other employment opportunities forgone by the spouse seeking maintenance; (f) the age, and the physical and emotional condition of the spouse seeking maintenance; (g) the ability of the spouse from whom maintenance is sought to meet needs while meeting those of the spouse seeking maintenance; and (h) the contribution of each party in the acquisition, preservation, depreciation, or appreciation in the amount or value of the marital property, as well as the contribution of a spouse as a homemaker or in furtherance of the other party's employment or business. Minn. Stat. Ann. ?518.552, subd. 2 (West 1990). The statute specifically states that if there is any uncertainty as to the need for permanent maintenance, the court must order permanent maintenance. Minn. Stat. Ann. ?518.552, subd. 3 (West 1990). In such a situation, the court may, however, leave its order open for modification of the maintenance award, if necessary, at a later date. Id . In interpreting the statutes, the Minnesota Courts have held that an award of maintenance is - 2 - based on need. Lyon v. Lyon , 439 N.W.2d 18, 22 (Minn. 1989); Sefkow v. Sefkow , 427 N.W.2d 203, 216 (Minn. 1988). The spouse seeking maintenance must, therefore, show his/her need for an award of maintenance. Id . In order to show need, the spouse must show that he/she meets the requirements of Minnesota Statute Section 518.552. Due to the fact that each dissolution of marriage case is different, each case must be determined on its own facts and no single statutory factor is dispositive. See Erlandson v. Erlandson , 318 N.W.2d 36, 39 (Minn. 1982); Cooper v. Cooper , 298 Minn. 247, 214 N.W.2d 682 (Minn. 1974). When determining whether or not to award a party maintenance, the court must determine whether "the spouse seeking maintenance [is] able `to provide adequate self-support, after considering the standard of living established during the marriage and all relevant circumstances, through appropriate employment'? Being capable of employment and being appropriately employed are not synonymous, a fact recognized in statutory systems such as workers' compensation and unemployment compensation." Nardini v. Nardini , 414 N.W.2d 184, 197 (Minn. 1987) (quoting Minn. Stat. ?518.552, subd. 1 (b) (1986)). An award of maintenance is based on the "notion that the marital relationship involves an economic partnership in which the spouses equally share the burdens and responsibilities of both marriage and dissolution of marriage." Erlandson , 318 N.W.2d at 39. See also Giesner v. Giesner , 319 N.W.2d 718, 720 (Minn. 1982) (If the career change was made in good faith, the child and the separated spouse should share in the hardship as they would have had the family remained together, the same is true as to benefits). Just because one spouse has the ability to pay maintenance, however, does not "obviate the statutory mandate that the other spouse's own independent financial resources must be considered too." Lyon v.Lyon , 439 N.W.2d 18, 22 (Minn. 1989). The court must balance the financial needs of the spouse seeking maintenance against the financial conditions of the spouse providing the maintenance. Erlandson , 318 N.W.2d at 39-40. The court must also consider as part of a spouse's financial resources, the income that is generated by liquid assets. Broms v. Broms , 353 N.W.2d 135 (Minn. 1984). The court, however, should not expect either spouse to invade the principal of his/her investments in order to satisfy - 3 - his/her monthly financial needs. Id . at 137-38. In a traditional marriage the husband was seen as the sole provider of the family's economic support and the wife was the homemaker. Nardini , 414 N.W.2d 184, 197 (Minn. 1987). The wife's role was to raise the children and support the family in noneconomic ways. Id . Traditional marriages "contemplated sharing all of the property and income and viewed the wife's efforts to build the husband's career and earning power, however evidenced, as investments in their shared future." Id . (citing Weitzman, The Economics of Divorce: Social and Economic Consequences of Property, Alimony and Child Support Awards , 28 UCLA L.Rev. 1181 (1981)). Thus, when a long term marriage is dissolved, it creates numerous problems for both parties. A "dissolution of a long-term marriage creates financial problems for both parties." Nardini , 414 N.W.2d at 198. Equity, however, "does not demand absolute parity in [the parties] post- dissolution positions, but the bulk of the economic burden" must not be place on only one party, especially without any regard for the standard of living during the marriage and "without regard to that party's limited ability to complete [sic] in the labor market." Id . If there is any question that the spouse seeking maintenance may not be able to support his/herself, then the statute requires the trial court to award that spouse permanent maintenance. Nardini , 414 N.W.2d at 198. The trial court should, however, retain jurisdiction over the maintenance award in order to modify the award at a later date, if necessary. Id . An award of temporary maintenance will not work when it is uncertain whether or not the spouse seeking maintenance will become self-supporting. Id . A spouse who is unable to secure employment or who can only become partially self-supporting will be hard pressed to meet the burden required by the statute of proving either that the spouse's earnings have decreased or his/her need has increased. Nardini , 414 N.W.2d at 198. The change in that spouse's circumstances is both insufficient and nonexistent, but by the terms of the judgment and decree the maintenance will cease even though there remains a need for the maintenance to continue. Id . at 198-99. If, however, the obligor has a change in his/her earnings or needs, thus making the terms of the award unfair or unreasonable, the change will support the - 4 - obligor's petition for modification. Id . at 199. Therefore, an award of permanent maintenance should be made, as it is the only award that will work when there is any uncertainty as to a spouse's ability to become self-supportive. Nardini , 414 N.W.2d 184 (Minn. 1987). CONCLUSION - 5 -