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A recent opinion from Division II, Hulscher v. Hulscher, docket # 35157-9, 4/01/2008, holds that a provision for non-modifiable maintenance is valid if embedded in a decree of dissolution. If nothing else, the decision illustrates the perils of pro se representation. (The father was pro se. The mother was represented.)

BACKGROUND

The father agreed to pay what appears to be excessive maintenance. Maintenance was set at $1,100 per week, minus child support. Maintenance terminated at the death or remarriage of the mother. Otherwise, it was non-modifiable. In addition, the father paid for the older child’s college education at a private university and the younger child’s education at a private high school. He also paid health insurance for himself, the mother, and the children.

To make these payments, the father worked 100 hours per week as a longshoreman. The opinion does not indicate whether the mother, a home-maker whose children were no longer living with her, made any attempts to find employment or to become employable.

ANALYSIS

To me, the maintenance provision is unfair for at least two reasons. First, it is based on what the father can supposedly pay and bears no relationship to what the mother needs. Indeed, the total amount the father pays for maintenance and child support is constant, $1,100 per week or nearly $4,800 per month.

However, the portion that goes to the mother changes based on the amount that goes to the children. The original child support payment was nearly $2,600 per month. Thus, the mother got $2,200 per month when the children are living with her. After the children age-out and child support is no longer due, the mother gets $4,800. This is not sensible, the mother’s needs should not go up after the children leave, they should go down.

The maintenance provision also appears to be unfair because it does nothing to encourage the mother to join the work force. I mentioned that the maintenance award is supposed to be the product of the mother’s needs and the father’s ability to pay. It is also supposed to be related to the length of time it should take for the mother to gain employment and the length of the marriage. The mother should receive maintenance long enough to give her time to get a job and maybe the education that she forewent during her marriage.

At time the father filed his petition to modify or vacate the decree, the mother was a home maker with one child in college and the other child living with the father. Thus, she was in an ideal position to attend college or job training and find a job. Indeed, the commissioner who originally heard the petition to modify the maintenance provision of the decree phased out the maintenance over time as follows:

1st 4 years: 100%
next 2 yrs: 75%
next 2 yrs: 50%
next years: 0%

The commissioner reasoned as follows; 1) The mother should be able to obtain a college degree or equivalent within four years; 2) As the father got older, it was not reasonable to expect him to continue working 100 hours per week, especially given the physical requirements of his job.

The trial court affirmed, but the appellate court reversed, holding essentially that non-modifiable means non-modifiable and that non-modifiable maintenance provisions are specifically allowed for by statute. Legally, it was the correct ruling. However, based on the facts, the ruling seems harsh.

MORAL

You can’t fault the court for following the law. However, you can fault the father for not hiring an attorney. I doubt a competent attorney would have agreed to those maintenance provisions. A few thousand dollars in attorney’s fees at the front end of the divorce would probably have saved scores of thousands of dollars post divorce.

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