1. Maintenance A Rule In Search Of A Rationale

2. Legislative Proposition R.S. Mo. 452.335 is hereby repealed

3. Cox v. Cox Long-term marriage and substantial disparity between the parties' incomes. The ex-wife challenged the trial judge’s decision that provided limited duration alimony in the amount of $200 per week for a period of five years “to enable the plaintiff to establish herself as an attorney.”

4. Partnership Theory The court says that a marriage is a “partnership,” and the “married couple forms an economic unit. The contributions of both... Are valuable regardless of whether the contributions are financial or non financial.” What are the alimony implications of this policy?

5. Contributions The court also says that “a transfer of earning power” occurs during a traditional marriage in which the homemaker spouse’s efforts increased the other’s earning capacity at the expense of her own. Do you agree?

6. Predicting a maintenance award Is compensation for income differentials a basis for maintenance? Should maintenance be based on income at end of marriage or average of marriage? Should maintenance be based on earnings or earning capacity? Should alimony be used for compensation for contributions?

7. Maintenance under 452.335 Property division first Standard: “Reasonable needs plus Inability to support” Custodian of a child who needs care

8. What are reasonable needs? What is wife’s reasonable need? What rationale supports an award? Should the award be permanent or temporary?

9. Ability to meet needs Role of property distribution? Earnings or ability? Impact of custody of child who needs care?

10. The Role of Fault All courts have limited role of fault (“financial cost” rules) Missouri considers fault in both property distribution and in maintenance Must show actual burden on spouse

11. Christian v. Christian Divorce action included tort and punitive damage claims. Ex-wife awarded alimony, attorneys’ fees and costs, a permanent injunction, $20,000 for intentional infliction of emotional distress; and punitive damages.

12. Considering Tort Claims as an Alternative Was the IIED claim justified? What are its limits? Were punitive damages justified? What are its limits?

13. Haugan v. Haugan Married – 1973 Supports couple 73-77 Teaches until 1980 – resigns Green Bay – purchase house Unemployed; then IBM Annual salary $19,680 1973 – H enters medical school Residency – 77 – 80 $49,00 aggregate 1980 purchase house Annual salary $55,498

14. Valuing Contributions Cost value –Supporting spouse’s contributions in terms of money and services Opportunity costs – sacrificed income because of schooling (here $45,700) PV of student spouse’s enhanced earning capacity One-half earning capacity x years of support

15. Maintenance Forms Open ended or Terminable? Modifiable or Non-modifiable? Decretal or Contractual?

16. Indefinite (open-ended) maintenance Standard Modification? Termination?

17. Limited Duration Standard: Substantial evidence that future events will occur that change need Modification Termination

18. Maintenance in gross Lump sum award, payable at one time or installments Difference from division of marital property Problem: true maintenance in gross never terminated No statutory authority in Missouri, but case law has permitted

19. Decretal v. Contractual Set by court upon factors Generally modifiable Enforced as a judgment (procedures, devices, etc.) Agreed between parties Modifiable on contract terms Enforced as a contract (contract remedies, defenses, etc.)

20. Combined Forms Separation agreement is incorporated into the decree Decretal for purposes of enforcement Contractual for purposes of modification

21. Standard Changed circumstances so substantial and continuing as to make the terms unreasonable Changes in income Failure to seek employment Remarriage/cohabitation

22. Termination 452.370.2 Unless otherwise agreed in writing or expressly provided in decree - maintenance terminated at death or remarriage What is the effect of cohabitation?

23. Drafting of Maintenance Provisions: Make clear the distinctions between child support & maintenance Be clear about what type of maintenance is envisioned Specify modification and termination terms

24. Haugen v. Haugen Approaches different legal systems take to the treatment of maintenance where the partner seeking an award has continued working outside the home while the other partner has obtained an education that will significantly increase the latter’s income once employed.