Long Term Spousal Support

Long Term Marriages

Long Term Spousal Support

Long Term Spousal Support: How Does Maintenance Happen?  If you are have been married over 25 years, and you are getting divorced,  you really need to learn how the courts handle divorces in long term marriages. In the last couple of years, I have tried a number of divorces with marriages over 25 years, and I have a fair amount of experience in this.

The first issue is: are you in a long term marriage? Washington courts, as a general matter, categorize marriages as short term, mid-term, and long term marriages. There is no statutory definition of what exactly they are; but generally, a short term marriage is anywhere from an hour to about 5 years; mid-term is from 5 years to 25 years; long term marriages are anything 25 years or over. The length of marriage is measured from the date of marriage to the date the parties actually separated.

How Do Courts Handle Maintenance?  Generally, in marriages under 25 years, courts will use a very rough 1 to 3 ratio: that is, one year of support to every three years of marriage. (See my Maintenance Section.)  But in long term divorces (25 year and over marriages), there is a very different rule.

The main case on long term divorces is called Marriage of Rockwell. When I was in trials years ago, I had courts say that Rockwell was just dicta and they did not have to follow it. That has changed. Just in the past two years, there are three more cases: Marriage of Kim and Kim; Marriage of Larson; and Marriage of Wright and Kim. All three are Division I cases, which means they are controlling law for King and Snohomish County. All of them say the same thing: when you have been married over 25 years, then the court’s task is to put you in equal financial positions going forward, permanently. That’s right: that means lifetime maintenance. That includes dividing Social Security, future bonuses, future raises, future stock awards, etc. It also means dividing the assets 50/50, overall. Courts have even interpreted Rockwell as meaning that the court has to divide separate property as well, if need be, to equalize the parties’ financial positions.

(That makes sense: generally, if you have been married 25-30 years, you are thinking about retirement; the income earner is at the peak of their earning ability; and whatever the other partner can do to make money, that’s probably the most she will ever make. It is a sad but hard truth, that people over 50 generally do not start and build successful careers.)

Marriage of Rockwell and the other cases mean that the court needs to divide everything equally: assets, debts, and income streams. That means, if you are the income earner, you may well be paying half your income as maintenance, forever – including Social Security. And she will get half of all the assets.

But that is not the end of the story! Cases in the last couple of years have modified that rule substantially.

A 2017 Division II case – In re Marriage of Doneen – Appellate, 391 P.3d 594, 197 Wash.App. 941 (2017) – has somewhat modified the Rockwell rule. This case held that even in a very long-term marriage, the court can award separate property to the party who originally went to, and does not have to put the parties in equal financial positions. I believe that case actually means the court doesn’t have to divide separate property if it doesn’t want to, for the most part.

And in newer case,Marriage of Kaplan, 421 P.3rd 1046, 4 Wash.App.2d 466 (2018), the court found that even in the long term marriage the court was not required to put the parties in roughly equal financial positions and for the rest of their lives. It also found that the wife was not entitled to maintain her pre-distribution standard of living as a matter of right; and found the court did not have to impute income to the wife where she was unemployed and had been a homemaker for a long time.

Case Law

“In the case of a short marriage [approximately 5 years or less], the marriage has in fact not been the significant event that is normally presumed. Particularly, there has not been a long reliance on the marital partnership. Therefore, the emphasis should be to look backward to determine what the economic positions of the parties were at the inception of the marriage and then seek to place them back in that position, including provision for interest or inflation, if feasible. After doing that, if there are properties left over, they would presumably be divided about equally. Presumably in a short marriage maintenance would not be paid, except in extraordinary circumstances or perhaps for a very brief adjustment period.”

Winsor, “Guidelines for the Exercise of Judicial Discretion in Marriage Dissolutions,” Washington State Bar News, vol. 14, page 16 (Jan. 1982)

“In the case of a long marriage [approximately 25 years or more], the goal should be to look forward and to seek to place the spouses in an economic position where, if they both work to the reasonable limits of their capacities, and manage properties awarded to them reasonably, they can be expected to be in roughly equal financial positions for the rest of their lives. Long term maintenance, sometimes permanent, is presumably likely to be used unless the properties accumulated are quite substantial, so that a lopsided award of property would permit a balancing of the positions without (much) maintenance.”

Winsor, “Guidelines for the Exercise of Judicial Discretion in Marriage Dissolutions,” Washington State Bar News, vol. 14, page 16 (Jan. 1982)

Post-dissolution economic circumstances are paramount consideration in awarding maintenance (see same point under Property above).

In re Marriage of Williams, 84 Wn. App. 263, 927 P.2d 679 (1996), review denied, 131 Wn.2d 1025 (1997)

In marriages of 25 years or longer, the goal of the court is to put parties into roughly equal financial positions permanently. To do that, the court can consider and award separate property.

Marriage of Rockwell, 141 Wash.App. 235 170 P.3d 572 (2007); Marriage of Kim, 179 Wash.App. 232, 317 P.3d 555 (2014); Marriage of Larson, 178 Wash. App. 133, 313 P.3d 1228 (2013); Marriage of Wright, 319 P.3d 45 (2014).

The non-exclusive statutory factors for assessing maintenance exclude marital misconduct (except see “spousal abuse” below) and include, but are not limited to, the financial resources of the party seeking maintenance, including the property to be awarded; the ability of the party seeking maintenance to be self-sufficient without assistance, including the receipt of child support; the time and education needed by the party seeking maintenance to become self-sufficient; the standard of living established during the marriage; the duration of the marriage; the age, physical and emotional condition and financial obligations of the spouse seeking maintenance; and the ability of the spouse from whom maintenance is sought to meet his own needs and obligations while paying maintenance.

RCW 26.09.090

In re Marriage of Marzetta, 129 Wn. App. 607, 120 P.3d 75, review denied 157 Wn.2d 1009, 139 P.3d 349 (2005);

The amount of maintenance is limited by need versus ability to pay.

In re Marriage of Foley, 84 Wn. App. 839, 930 P.2d 929 (1997)

A demonstrated capacity for self-support does not automatically preclude maintenance.

In re Marriage of Washburn, 101 Wn.2d 168, 178-79, 677 P.2d 152 (1984)

“[T]he court is not limited to assessing a minimum amount of maintenance to pay monthly expenses. It may also consider the standard of living attained during the marriage, the ability of one spouse to pay additional maintenance, and the other’s ability to provide for himself or herself.” (Barnett at p. 388)

In re Marriage of Washburn, 101 Wn.2d 168, 179, 677 P.2d 152 (1984)

One factor in awarding maintenance is the standard of living experienced during the marriage (effectively overruling prior holdings that maintaining a lifestyle to which one has become accustomed is not a test of need.

Cleaver v. Cleaver, 10 Wn. App. 14, 516 P.2d 508 (1973); Friedlander v. Friedlander, 80 Wn.2d 293, 297, 494 P.2d 208 (1972); Morgan v. Morgan, 59 Wn.2d 639, 369 P.2d 516 (1962)).

An acceptable method is equalizing incomes for an appropriate period of time

(Estes, Washburn and Bulicek). RCW 26.09.090 Kenneth W. Weber, 20 Washington Practice, Family and Community Property Law, §34.6 (1997) In re Marriage of Estes, 84 Wn. App. 586, 593, 929 P.2d 500 (1997);