A party seeking modification of spousal maintenance (or changing alimony) has the burden to show a substantial change of circumstances, since the time maintenance award was set, and that these changes render the award unreasonable or unfair. See Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997). The terms of a maintenance award may be modified upon a showing that there has been a substantial increase in the gross income of a maintenance recipient. See Minn. Stat. § 518A.39 subd 2(a)(1). But what happens when the party (either the recipient or the payor) chooses not to work to his or her earning ability?

Potential income can be considered

Even in cases where a recipient or payor of a maintenance award has no (or limited income) potential income can and should be attributed to a party. Recent case law suggests that a permanent maintenance recipient should be required to contribute to living expenses commensurate with earning capacity. Passolt v. Passolt, 804 N.W.2d 18, 25 (Minn. Ct. App. 2011). In cases where a spouse fails to provide for his or her reasonable needs, a court is not prohibited from attributing to the recipient, the income which could have been produced by reasonable effort. See Hecker 568 N.W.2d at 710. By attributing this income, the Court does not have to find bad faith. Instead the Court need only consider the relevant factors for an award of maintenance; which includes one’s ability to meet his or her needs independently. See Minn. Stat. § 518.552. In considering an award of spousal maintenance, a Minnesota Court, in accordance with Hecker and Passolt, should consider the ability of a maintenance recipient to meet her needs independently, and attributes to the recipient the income that could be produced with reasonable effort; whether the recipient is earning the income or not. If that is the case, then a Court may have the ability to consider income that a maintenance recipient or payor is choosing not to earn, and may even consider modifying a maintenance award based on that potential income.

Questions about changing alimony?

If you are going through a divorce and want to know more about spousal maintenance (alimony) changes, or simply want to learn more about the Minnesota divorce attorneys at Alithis Family Law, contact our office for a free consultation about your specific situation.

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