When divorcing spouses enter into a spousal maintenance agreement, they often include a “Karon waver.” However, many Karon waivers do not include language required by Minnesota Statutes and Minnesota case law. As a result, these Karon waivers are not enforceable. The article below was written by Steven P. Katkov. After it was published, the Minnesota Court of Appeals published its opinion in Gossman v. Gossman, 847 N.W.2d 718 (Minn. Ct. App. 2014). Thus, Gossman articulates is a significant update in the law. Here are some articles published after Gossman:
A post-marital cash payment from one spouse to the other, or alimony, has been an element of the human experience for thousands of years. (See footnote 1.) The concept seems to have first appeared in Hammurabi’s Code of Laws, (See footnote 2) where marital dissolution required the husband to repay his wife’s dowry (the money or property a bride brings to her husband at marriage), relinquish child custody and provide financial and other resources sufficient in both amount and length to adequately provide for her and the children. Perhaps driven by the ancient custom of transferring the bride’s money and property to the husband at marriage, a common practice throughout out much of the ancient world and wildly popular in medieval Europe, (See footnote 3) alimony was created to assure the ex-wife’s health, safety and welfare by the most expedient means available: that is, by requiring the ex-husband to pay for her food, lodging, clothing and other necessities of life following divorce.
The award of financial payments to be made by one party to the other following divorce is variously referred to in the literature and court decisions on the matter as spousal support, spousal maintenance, maintenance, or alimony. We use the term “spousal maintenance” throughout these materials, avoiding the more pejorative connotations associated with the traditional term “alimony.” Spousal support as a term of art also removes the taint of marital misconduct consistent with the emergence of “no-fault” divorce laws and encompasses the notion that either ex-spouse may, by negotiation or court order, be required to pay spousal maintenance to the other. Such usage also dispatches with the negative portrayal of women as the “weaker sex.” (See footnote 4.)
The treatment of spousal maintenance in the Code of Hammurabi is sophisticated and intricate. In seeking the promotion of positive social values and human relations, the Code addresses a wide range of potential intimacies. The Code addresses situations in which a man beds a married woman (the penalty for which is death), to those in which a childless couple amicably wish to part ways (in which case the husband must repay the dowry, unless, of course, the wife had been guilty of infidelity, in which case she was to be cast into the water and presumably drowned) to the more common occurrence in which the husband sleeps with another woman, resulting in his forfeiture of the dowry and, in some instances, requiring that he provide usufructory property rights to his ex-spouse.
From this in auspices beginning in Babylonian times, spousal maintenance appears most prominently in the Corpus Juris Civilis (circa 529 AD) under Roman Emperor Justinian I, the fundamental works in jurisprudence with its emphasis on case law, informing both Roman law and (eventually) British common law traditions. (See footnote 5.) With the advancement of the British Empire to the continental United States by English settlers, the tradition of imposing spousal maintenance upon husbands became a feature of American law. (See footnote 6.) With the promulgation of the Uniform Marriage and Divorce Act (“UMDA”) by the National Law Commissioners in 1973, (See footnote 7) the concept of no-fault grounds for divorce became a major part of the American discussion on the subject. (See footnote 8) The idea of imposing spousal support upon the husband only — premised on the theoretical basis that the husband had a duty to support his wife and should be punished for his wrongdoing (See footnote 9) — became the matter of some debate, one that continues to this day as evidenced by enactment of the Alimony Reform Act of 2011 in Massachusetts, the first state in the union to have adopted the concept of spousal support. (See footnote 10.)
The UMDA has been promoted as a means of eliminating the “traditional conception of divorce … based on fault,” a system believed by the Commissioners to have created “an ineffective barrier to marriage dissolution which is regularly overcome by perjury, thus promoting disrespect for the law and its processes, and as an unfortunate device which adds to the bitterness and hostility of divorce proceedings.” (See footnote 11.) While the UMDA has been adopted in only a handful of states, (See footnote 12) with all of its misgivings and shortcomings notwithstanding, (See footnote 13) the concept of no-fault divorce is now prevalent in all 50 states (See footnote 14) and informs state laws on the subject. (See footnote 15.) The societal acceptance of no-fault divorce in the United States has challenged the age-old custom of a nearly automatic award of spousal maintenance to the ex-wife based on historical momentum and simple prejudice that the husband should support the wife after the divorce, regardless of need. (See footnote 16.) In fact, many state statutes permitted an award of spousal maintenance only to the ex-wife, a practice that was soundly rejected as unconstitutional by the U.S. Supreme Court in March 1979 (See footnote 17.), ending more than a century of discrimination against men.(See footnote 18.) The Supreme Court in Orr noted that “[l]egislative classifications which distribute benefits and burdens on the basis of gender carry the inherent risk of reinforcing the stereotypes about the ‘proper place’ of women and their need for special protection.”(See footnote 19.)
Today, trial courts appropriately place a great deal of weight on the parties’ ability to independently support themselves, avoiding fixation on (mis)conduct of the parties during the marriage and the historical presumption that only women should be the recipient of maintenance. According to a recent survey of state laws on the subject, this judicial emphasis is consistent with a growing national reconsideration of spousal maintenance, (See footnote 20) although recent quantitative research on the subject leads some to conclude that American society values “men as wallets more than as dads.” (See footnote 21.) Minnesota was an early adopter of no-fault divorce in 1974, followed shortly thereafter by progressive legislation in 1978 that limited judicial consideration of spousal maintenance without regard to marital conduct. (See footnote 22.) It is within this context under Minnesota law that the balance of this material is focused. (See footnote 23.)
The award of spousal maintenance has always fallen within the judge’s purview, stemming largely from the judge’s authority to decide how marital assets should be divided between the spouses. By closely examining the assets of each spouse, the judge determines if spousal maintenance should be paid – and by whom. In some cases, the assets may generate sufficient income that either spousal maintenance is unnecessary or the amount awarded is commensurate with the financial condition of the parties. Of course, the concept until very recent times was limited to the payment by the husband of the wife’s living obligations but can now be viewed as a means of rehabilitation for the non-working, stay-at-home spouse. Similarly, spousal maintenance in many jurisdictions can also include the monies necessary to keep the ex-spouse in his or her accustomed standard of living. (See footnote 24.) Together, these two expanded concepts for spousal maintenance created rehabilitative and permanent maintenance. (See footnote 25.)
Each state has guidelines to calculate spousal maintenance. However, they are generally just that – guidelines. (See footnote 26.) Whether or not spousal maintenance should be awarded is up to the discretion of the judge in most states, informed by statutes that are increasingly gender-neutral, removing from the judge’s consideration “the baggage of sexual stereotypes” as encouraged by the Supreme Court in Orr. (See footnote 27.) The judge decides whether or not spousal maintenance should be paid, as well as the amount and duration. State legislatures are becoming more activist in defining the boundaries of appropriate spousal maintenance, with defined terms for everything from “bridge-the-gap” alimony in Florida (See footnote 28) to “reimbursement,” “rehabilitation,” or “transition” alimony in Massachusetts. (See footnote 29.) But, the majority of states permit the judge in his/her sole discretion to award spousal maintenance whenever “one spouse has greater need, the other spouse has the ability to pay, and payment is deemed to be fair in some sense. The terms “need,” “ability,” and “fair” are highly subjective in this context.” (See footnote 30.)
Based on imperfect, normative concepts such as these, judges have required an ex-spouse who is anything but rich to pay large, long-term and even permanent spousal maintenance to the other, even if the parties’ marriage was of short duration, and even if their ex- spouses are employed, as exemplified by the story of Damon Gorbet, in which 220 days of marital hell cost him $110,420. (See footnote 31.) Florida is one state that has taken the step of bringing rationality to the award of spousal maintenance by enacting legislation requiring judges there to consider, in determining an appropriate award, the length of the marriage. Florida now relegates marriage into three categories of duration: (a) Short-term: less than seven years of marriage; (b) Moderate: between 7 and 17 years; and (c) Long-term: more than 17 years of marriage. (See footnote 32.)
In most states, judges consider a variety of factors in determining first whether spousal maintenance should be awarded, and if so, the amount of maintenance and its duration. They may look at the amount calculated under the state’s guidelines. In Minnesota, the factors are codified at Section 518.552:
In a proceeding for dissolution of marriage or legal separation, or in a proceeding for maintenance following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse and which has since acquired jurisdiction, the court may grant a maintenance order for either spouse if it finds that the spouse seeking maintenance:
The maintenance order shall be in amounts and for periods of time, either temporary or permanent, as the court deems just, without regard to marital misconduct, and after considering all relevant factors including:
Nothing in this section shall be construed to favor a temporary award of maintenance over a permanent award, where the factors under subdivision 2 justify a permanent award. Where there is some uncertainty as to the necessity of a permanent award, the court shall order a permanent award leaving its order open for later modification.
Following these statutory guidelines, Minnesota courts will look at need, ability to pay, length of marriage, standard of living, ages and health of both parties, number of minor children, educational level, and child support. The judge’s determination as to what constitutes marital property necessarily drives the analysis in determining the amount and duration of maintenance. (See footnote 33.) Once ordered, spousal maintenance awards are generally modifiable by the court unless otherwise agreed to by the parties and explicitly approved by the court. (See footnote 34.) Parties might seek modification to the award because of a change in need (See footnote 35) or ability to pay, such as the obligor’s earning potential. (See footnote 36) One’s standard of living and the age and health of both former spouses are key considerations in any petition to modify the original maintenance award. If the original award can be characterized as unreasonable and unfair in light of a substantial change in circumstances, courts find it an appropriate exercise of their discretion to modify spousal maintenance.
Courts historically shied away from issuing orders divesting themselves of jurisdiction to hear the petition of an ex-spouse to modify an award of spousal maintenance based on change in circumstances. In fact, until the UMDA was promulgated in 1970, prenuptial agreements that waived spousal support at divorce or that limited the dependent spouse’s support rights were unenforceable. (See footnote 37) In keeping with this tradition, judgments and settlement agreements in Minnesota can be modified due to material changes in either spouse’s circumstances. (See footnote 38.) In the simplest of terms, the modification request must be premised on a change in life circumstances that cause the existing spousal support to no longer be reasonable and appropriate. (See footnote 39.) A substantial increase or decrease in income of either the obligor or recipient, or a substantial increase or decrease in the needs of the recipient, are sufficient grounds to show changed circumstances and obtain a modification of spousal maintenance. (See footnote 40.)
Minnesota has for nearly a half-century recognized an exception to this general rule. The Legislature proclaimed that a spouse may surrender his/her right to future modification of a spousal maintenance arrangement negotiated at the time of the divorce by enacting Subdivision 5 to Section 558.552:
The parties may expressly preclude or limit modification of maintenance through a stipulation, if the court makes specific findings that the stipulation is fair and equitable, is supported by consideration described in the findings, and that full disclosure of each party’s financial circumstances has occurred. The stipulation must be made a part of the judgment and decree.
The Legislature recognized that a separation agreement might be unmodifiable in spite of a material change in circumstances depending on the negotiations and circumstances leading up to the agreement – particularly if a waiver of the court’s continuing jurisdiction over the issue of spousal maintenance appears in the Judgment and Decree. (See footnote 41.) In fact, some have argued in reviewing court decisions on the issue of stipulated waivers among divorcing spouses to have been “unequivocally sustained,” even when the waivers were absolute. (See foonote 42.) Minnesota courts did not always rule consistently on the issue of waiver, however. (See footnote 43.)
The Minnesota Supreme Court took up the challenge in the case of Karon v. Karon, (See footnote 44) the landmark decision on the topic. In Karon, the Court for the first time enforced a waiver of future maintenance as an appropriate exercise of legislative prerogative and judicial economy, notwithstanding the historical objection to approving any litigant’s waiver of statutory rights. The waiver contained within the judgment and decree as between Howard and Frima Karon provided, as follows:
Except for the aforesaid maintenance, each party waives and is forever barred from receiving any spousal maintenance whatsoever from one another, and this court is divested from having any jurisdiction whatsoever to award temporary or permanent spousal maintenance to either of the parties. (See footnote 45.)
The Minnesota Supreme Court dismissed any argument that women needed special protection:
Amicus for the Family Law Section of the Minnesota State Bar Association stated at oral argument that setting aside the stipulation and decree is insulting and demeaning to women. Counsel who argued on behalf of the association is a woman. She took that position in response to counsel for respondent’s implication that women involved in divorce cannot understand or act to protect their rights even when represented by counsel; therefore, the state must protect them in the manner it protects children in the role of parens patriae. Amicus’s argument is compelling. (See footnote 46.)
Of course, the waiver must be both voluntary and intelligent.(See footnote 47.) The Legislature and the Supreme Court bucked the general trend against approving the waiver of statutory rights founded on the age-old maxim that equity abhors forfeiture, particularly in circumstances “when great injustice is done thereby and the one seeking a forfeiture is adequately protected without the remedy.” (See footnote 48.) Admittedly, the Karon court made little of this equitable maxim when shredding respondent’s argument that waiver of a statutory right is without precedent in Minnesota. The Court characterized that argument as fallacious. (See footnote 49.)
Karon stands for the proposition that where the parties have agreed to waive or limit spousal maintenance, both as to amount and duration, and their stipulated agreement satisfies the requirements for such private agreements under Minn. Stat. 518.552, subd. 5, the agreement is enforceable as a matter of law. The decision directs courts to enforce any voluntary agreement of the parties that was made with full disclosure in the absence of coercion or fraud. The decision has allowed parties to agree with confidence to waivers of spousal maintenance, knowing that trial courts had been ordered to enforce the agreement as written and serves judicial economy by providing “a means of simplifying and expediting dissolution litigation.” (See footnote 50.) A Karon waiver that meets the statutory requirements will survive judicial scrutiny even if the recipient’s need for maintenance outweighs the obligor’s financial ability to pay maintenance.
A Karon waiver is a private agreement between divorcing spouses waiving their statutory right to seek modification of the terms of a spousal maintenance order incorporated into the marital termination agreement. (See footnote 51.) Under the holding in Karon, courts are divested of jurisdiction to modify an award of spousal maintenance award originally made pursuant to a stipulation of the parties in which they waived any right to future modification of maintenance (regardless of the circumstances).(See footnote 52.) Karon waivers can work to reduce the unpredictability of spousal maintenance awards and their modifications many years after the dissolution is final.(See footnote 53.)
Following the decision in Karon, the Minnesota Legislature created further protections for parties limiting or precluding modification of spousal maintenance through a stipulated agreement, in Minn. Stat. 518.552, subd. 5. As noted above, any such agreement to waive rights to future spousal maintenance adjustments or awards require the trial court to make specific findings that the stipulation is fair and equitable in light of the full disclosure of the party’s financial circumstances and is supported by independent consideration. “For stipulations adopted since the passage of [these] statutory requirements, [Section 518.552, subd. 5] prescribes the appropriate limitations.”(See footnote 54.) Absent these strict, and interdependent statutory requirements, a Karon waiver will fail. (See footnote 55.)