In August Minnesota enacted a new subdivision to Minn. Stat. §518.552 that permits the modification, reservation, suspension or termination of spousal maintenance obligations owing to a recipient’s cohabitation. This article examines the analytical standards that should be brought to bear in assessing potential legal action on the basis of the new law.
Effective August 1, 2016, Minnesota enacted a new subdivision 6 to Minn. Stat. §518.552, codifying the circumstances under which spousal maintenance can be modified, reserved, suspended, or terminated based on a maintenance recipient’s cohabitation. A family law practitioner may be wondering what changes have been made to this new law and how to advise our clients about the effects on spousal maintenance awards. In this article, we attempt to provide insight regarding what’s “new” in the Minnesota spousal maintenance laws and practical tips to bear in mind when analyzing this new law.
While the new statute largely mirrors considerations already present in case law,1 its enactment has spawned a wave of new litigation from maintenance obligors drawn back to court by the publicity surrounding the law’s enactment.2 Correspondingly, the new subdivision led some maintenance recipients to think twice about their new, post-divorce relationships.3 As practitioners begin litigating motions under the new law, a closer examination of its moving parts is necessary to develop sound arguments and defenses.
Any analysis of the new cohabitation law can be roughly divided into four separate inquiries: 1) an initial determination of whether “cohabitation” exists for the purposes of a statutory modification; 2) the threshold prerequisites for bringing a motion (e.g. those elements but for which a request for relief will fail); 3) the statutory factors to be balanced after these prerequisites have been met; and 4) the weighing of appropriate relief, whether a “reduction, suspension, reservation, or termination.”
Minn. Stat. §518.552, subdivision 6 permits a court to reduce, suspend, reserve or terminate spousal maintenance “based on the cohabitation by the obligee with another adult following dissolution of the marriage.” Notably, however, nowhere does the statute purport to define what it means to cohabitate—an omission of no little significance given the statute’s history.
In the absence of a specified definition, “cohabitation” must be “construe[d]…according to its common meaning and usage,”4 a mandate that often leaves courts in search of semantic guidance from Merriam Webster or American Heritage.
As commonly used, cohabitation denotes “liv[ing] together in a sexual relationship, especially when not legally married,”5 or “liv[ing] together as or as if a married couple.”6 In each definition, living in the same residence (co-habitating) is necessary but not, by itself, sufficient to result in “cohabitation.” Rather, the common usage of cohabitation assumes some additional level of romantic or sexual intimacy. Conversely, sexual intimacy alone does not create a “cohabiting” relationship unless the partners actively share a residence.7 Both a shared residence and a romantic relationship are necessary antecedents to a showing of cohabitation.
Thus, a maintenance recipient may live with a roommate or a platonic friend, and their common residence does not result in cohabitation as the term is commonly used. Likewise, partners who significantly support each other in a serious, long-term romantic relationship still cannot be said to “cohabitate” where they maintain separate residences.8 In each case, a vital element of cohabitation is absent.
Notably, an earlier version of what is now Minn. Stat. §518.552, subd. 6, proposed extending the definition of “cohabitation” to include even those couples engaged in intimate and mutually supportive relationships who did not share a residence. As originally drafted, the cohabitation statute would have provided: “In evaluating whether cohabitation is occurring under paragraph (b) and in determining whether maintenance should be suspended or terminated, the court shall not find an absence of cohabitation solely on the grounds the obligee and the individual with whom the obligee cohabitates maintain separate residences or do not live together on a full-time basis.” By removing the above language and instead relying on the “common meaning” of cohabitation, Minnesota implicitly rejected this more expansive definition of “cohabitation.”
Practically speaking, many instances of cohabitation will not be controversial. However, in light of this two-fold requirement, practitioners must also be mindful not to assume that every case of a shared residence will translate to a viable motion for cohabitation. Likewise, it would be a mistake to reflexively accept a significant romantic relationship (which may even include significant time at each other’s home) as de facto cohabitation in the absence of an actual, shared residence.
Instead, the practitioner will need to evaluate, through discovery and other sources, the quality and context of the relationship to determine whether it rises to the level of cohabitation. Caution and restraint should, however, be exercised to avoid even the appearance of discovery abuse or harassment.
Even if cohabitation can be established, the moving party must still satisfy four additional hurdles to qualify for a “reduction, suspension, or reservation.” If any of these elements are missing, the motion may be denied without a more careful, factor-by-factor evaluation of the request.
The cohabitation (or other developments) must rise to the level of a substantial change in circumstances as generally required for maintenance modifications, rendering the maintenance obligation unreasonable and unfair.
Minnesota’s new cohabitation statute incorporates the separate requirements of Minn. Stat. §518A.39, requiring the moving party to demonstrate both a substantial change in circumstances and unreasonableness and unfairness.9
While a residence with a new partner will (we presume) be a change from the circumstances during the marriage, such a change may not be substantial depending on its financial implications. By way of example, where the obligee continues to live a lifestyle similar to the marital standard (living in the same house, driving the same car) and does not receive support from a new partner, any change attributable to cohabitation may not rise to a level warranting modification. Caution must also be applied in considering unreasonableness and unfairness of the alleged change, which “place upon the claimant a burden of proof more than cursory.”10 Minnesota law long ago abandoned a punitive approach to “meretricious relationships” in which maintenance recipients are expected to maintain a puritanical celibacy after divorce.11 And even where the change in financial positions is substantial, such change may be neither unreasonable nor unfair depending upon the parties’ respective expectations and circumstances. Where a case will primarily hinge on unreasonableness and unfairness, it may be fair to inquire into the comparative financial positions of the parties and any contributions from an obligor’s new partner.
The practitioner must also consider the impact of any prior motions seeking modification of maintenance based on cohabitation, which may have predated the enactment of subdivison 6. While Minnesota courts have declined to strictly apply the doctrine of res judicata to requests to modify maintenance, “the underlying principle that an adjudication on the merits of an issue is conclusive, and should not be relitigated, clearly applies.”12 And “a question of changed circumstances, once litigated, may not be retried.”13 Thus, where a maintenance obligor has had a “full and fair opportunity to litigate the matter,” based on the “same set of factual circumstances,” resulting in a final order on the merits, a strong argument exists for denying a subsequent cohabitation-based motion brought under the new law unless some substantial additional change has arisen since the prior denial.14
Unique considerations can also arise where the spousal maintenance obligation is the result of a stipulated agreement rather than a litigated decision. The Minnesota Supreme Court has cautioned that a trial court should modify a stipulated maintenance arrangement only hesitantly, “because it represents the parties’ voluntary acquiescence in an equitable settlement.”15 Thus, where intervening circumstances, including, arguably, cohabitation, are foreseeable, a court may decline to alter the parties’ stipulated obligations.16
The maintenance recipient must not be legally prohibited from marrying the cohabitant.
As noted above, not every case in which an obligee lives with someone else will result in “cohabitation.” Subdivision 6(b) calls out one such instance, prohibiting a finding of cohabitation if the cohabitant and the obligee would be prohibited from marrying due to consanguinity. Thus, if a maintenance recipient lives with an adult child, elderly parent, or other relative, maintenance may not be modified solely due to the alleged cohabitation.
Notably, statute does not prohibit cohabitation-based modifications where the cohabitant is married to someone other than the obligee (and thus is legally barred from marrying the obligee). Such cases would, however, pose serious questions about the cohabitant’s obligations to his or her own family and how such obligations can or should be weighed in addressing the factors outlined below.
Modification of maintenance cannot be precluded by a private agreement (often referred to as a Karon waiver).
Minnesota law permits parties, by agreement, to expressly limit the court’s authority to modify spousal maintenance in the future.17 Where parties enter such an agreement, commonly referred to as a Karon waiver, the court is without further jurisdiction to modify spousal maintenance, regardless of any intervening circumstances.18
Following enactment of subdivision 6, some parties and practitioners began to question whether the cohabitation provisions would be available even where the existing spousal maintenance award incorporated a valid agreement limiting modification.
In the opinion of your authors, the question is addressed squarely by the text of the statute, which provides: “A modification under this subdivision must be precluded or limited to the extent the parties have entered into a private agreement under subdivision 5.”19 In other words, if parties stipulated to a Karon waiver, the enactment of cohabitation as a new statutory basis for modification will not restore the court’s jurisdiction over maintenance, absent an agreement by the parties to do so.20
The statute, however, is not without ambiguity. As drafted, the verbs “preclude” and “limit” in subdivision 6(b) lack a subject. The statute does not make clear who is “precluding” or “limiting.” One can thus read the subject as “the court” (as your authors do), in which case a motion to modify based on cohabitation is impermissible in the presence of a valid Karon waiver. An alternative argument, however, reads the subject in subdivision 6(b) as “the parties,” in which case the clause functions as a requirement that the parties preclude or limit cohabitation modifications as part of their original Karon waiver.
Under this alternate reading, the language in 6(b) serves as a prerequisite for Karon waivers, not as a limitation on cohabitation motions.
Despite this ambiguity, your authors believe the first reading results in a more common sense interpretation of the statute. The legislative history of subdivision 6 lacks any reference to a new Karon waiver requirement. Indeed, if any such requirement were intended, one would have expected a revision to subdivision 5, rather than an oblique mention in subdivision 6. The first sentence of clause (b) also provides some context: listing another limitation on cohabitation motions where the obligee and cohabitant would be prohibited from marrying. Interpreting clause (b) as a general provision in which cohabitation motions may not be brought appears more consistent than assuming two, unrelated requirements were haphazardly lumped together into a single clause.
In the absence of a written agreement or undue hardship, the motion to modify must be brought more than one year after entry of a decree.
Finally, statute imposes temporal limits on cohabitation-based modification, mandating that such motions be brought more than a year after entry of a decree. While no explanation is provided, it requires little imagination to infer a desire to avoid serial litigation from disgruntled former spouses. If that is the aim, however, it is notable that statute imposes no temporal limitations relative to other post-decree orders or prior motions. Hence, a party who has only recently moved to modify maintenance on other grounds, whether or not successfully, faces no limitations so long as a year has elapsed since entry of the original decree awarding maintenance.21
Only after meeting all of the above prerequisites can the court consider whether a reduction or modification may be appropriate. And, as is so often the case in family law, rather than providing a bright-line rule or list of elements, statute includes four factors the court must weigh in reaching its decision:
Whether the obligee would marry the cohabitant but for the maintenance award.
Since 1978, Minnesota law has provided for an automatic termination of spousal maintenance upon remarriage, presumptively based on the assumption that the “duty of support” which spousal maintenance replaces has now shifted to a new spouse.22 However, scattered among family court’s annals are stories of maintenance recipients who have all but married (including dresses, commitment ceremonies, an exchange of rings, and even name changes) to create the appearance of marriage without triggering the termination of support. Though such instances may be rare, they are not unheard of, and this factor appears tailored to address the equities of these “everything-but” relationships.
The factor, however, may also be hard to address. Certainly, where an obligee and cohabitant have already created a marriage-like (or marriage-light) relationship, their actions may allow the court to draw its own conclusions. However, in the absence of particularly flagrant conduct like that described above, a court may struggle to find convincing evidence on this factor. Social media evidence, private communications, and statements made to friends and family members will likely be the most informative, but the proverbial smoking gun will likely prove elusive in most cases. Complicating any analysis, the obligee and cohabitant may be of different minds on the question of marriage, based on prudential or philosophical considerations.
The appropriate weight to be assigned the obligee’s desire to remarry will be equally problematic. Each of subdivision 6’s other factors primarily ask economic questions: What financial benefit does the obligee derive from the relationship, and is it likely to continue? An obligee’s bare desire to remarry, by contrast, represents more of a personal value judgment than an economic calculation of the sort relevant to determining maintenance.
The economic benefit the obligee derives from the cohabitation.
Drawing on preexisting case law, the second factor focuses on the economic benefit a maintenance recipient received from the cohabitation.23 Simply put, to the extent a maintenance recipient’s needs are reduced upon cohabitation, maintenance may be reduced in turn. In conducting such an analysis, courts should consider “an itemized statement of [the obligee’s] living expenses prior to the cohabitation… [and] a summary of the expenses she is presently incurring.”24 By contrast, promises of future gifts or inheritances have been (and should continue to be) dismissed as “entirely too speculative” “confer[ing] no present rights.”25 The appropriate analysis is thus what present benefit the maintenance obligee receives as a result of the cohabitation, and the extent to which the need for maintenance is reduced.
Such an analysis, of course, may be somewhat facile, particularly where a maintenance recipient may have every reason to discourage his or her cohabitant from contributing to living expenses.
Concerns about collusion or manipulation inevitably pose the question whether courts may assume or impute some level of financial assistance even where none is forthcoming. Or must the court accept the obligee’s financial arrangements as it finds them, even if such arrangements result in a cohabitant contributing nothing to household expenses?
Recently the Minnesota Supreme Court approved attributing investment income to a maintenance recipient based upon the reallocation of the assets awarded in the divorce.26 Might similar reasoning compel the attribution of some level of rental income or other monetary contribution where a cohabitant is financially able? These are questions statute leaves unanswered, questions which will inevitably hinge “upon the individualized facts and circumstances of the parties.”27
At a minimum, analysis of the “economic benefit” to the obligee, will require the with-and-without analysis of expenses contemplated by the Supreme Court in Abbott v. Abbott.28 More likely, practitioners will also want to evaluate the obligee’s income and spending as well that of the cohabitant to evaluate benefits the obligee may receive, both direct and indirect, from the cohabitation. Such an analysis might be viewed as an invitation an open-ended discovery “fishing expedition,” but counsel must remain mindful of the limits imposed by Minn. R. Civ. P. 26.02(b).
Practitioners may also wish to exercise caution for even more self-interested reasons. Pursuing discovery too aggressively may leave a cohabitant second-guessing their relationship to the obligee. Litigation is hardly conducive to romance, and if a cohabiting relationship ends during the pendency of a motion, the court may decline to consider past benefits received, even where such benefits have been substantial.29
The length of the cohabitation and the likely future duration of the cohabitation.
If the second factor looks to the amount of the financial benefit, the third considers the likelihood any such benefit will continue. As the Minnesota Supreme Court observed nearly 40 years ago in Abbott:
“Since a man cohabiting with another’s former wife incurs no support obligation, it cannot be said that the former husband’s obligation is extinguished… Moreover, because there is no legal tie between the parties engaged in a meretricious relationship, the arrangement can be readily broken off without obligation. The likelihood that a former spouse will be required to resort to public assistance is thereby increased.”30
Certainly, the court may look to the actual length of the relationship, as well as its stability—potentially including sensitive and intimate inquiries regarding the state of the relationship, its strengths and weaknesses. It may also be prudent to inquire what, if any, legal obligations the obligee and cohabitant have undertaken, including entering a cohabitation agreement under Minn. Stat. §513.075.
The economic impact on the obligee if maintenance is modified and the cohabitation ends.
The final factor requires the court to conduct a prospective analysis as to how the obligee would be impacted if maintenance is modified and cohabitation ends.
As alluded to in Abbott, cohabitation is, by its nature, less stable than marriage and “can be readily broken off without obligation,” potentially leaving a former spouse dependent on the public fisc. To guard against such impact, the court may opt for a less severe “suspension” or “reservation” of maintenance to ensure the obligee is not unreasonably burdened if cohabitation ends. Considerations under this factor will likely hinge on the extent of an obligee’s dependence on maintenance to meet day-to-day needs, and his or her ability to recover financially at the end of the new relationship.
Deciding appropriate relief
Even where relief is available under the cohabitation statute, the question of “what relief” may be difficult to answer. Statute provides four alternatives: modification, termination, suspension and reservation, but little definitive guidance as to when each is appropriate.31
On the spectrum of most to least extreme, modification offers the most tailored relief available to the court: a simple dollar-for-dollar reduction in the obligee’s expenses to account for the economic benefit received from the cohabitation.
Termination, by contrast, represents the most extreme relief, ending both the obligee’s immediate right to maintenance, and their right to ever seek maintenance again in the future regardless of how circumstances develop.32
Between these two extremes lie the option to “reserve or suspend”33 maintenance, ending the present obligation, but continuing the court’s jurisdiction to award maintenance in the future should the cohabitation end or other circumstances intervene.34 In the words of the court of appeals, “reservation allows the [district] court to later assess and address future changes in one party’s situation as those changes arise, without prematurely burdening the other party.”35
Traditionally, reservations have been most common where a maintenance recipient had a history of health problems that would affect their ability to self-support.36 However, the court of appeals has declined to strictly limit reservations to health-related issues, holding more generally:
“We believe these cases [Wopata and Van De Look] stand for the proposition that a district court does not abuse its discretion by reserving the issue of spousal maintenance where the parties’ situation is too unsettled for a sound, final judicial determination.”37
Cohabitation provides a veritable textbook example of such an “unsettled” situation, in which a reservation, rather than termination, is often the more appropriate result.
How the courts apply the new subdivision 6 in conjunction with our historical spousal maintenance laws remains somewhat unanswered. That said, as practitioners we know that the new factors listed in subdivision 6 are only relevant so long as cohabitation exists and there has been a substantial change that affects the previous award of spousal maintenance. There are many issues to be considered when deciding whether a modification motion based on cohabitation is appropriate. As we move forward, we will continue to see how subdivision 6 is applied to past awards of spousal maintenance and what new issues need to be considered when awarding spousal maintenance as a result of these new factors.
MIKE BOULETTE is an attorney at Messerli & Kramer. He litigates high-stakes divorce and child custody cases, regularly handling multi-million dollar divorces involving closely held businesses, commercial real estate valuation, fraud and concealed assets, executive benefits, trusts, and inherited wealth, in addition to high-conflict custody cases with allegations of abuse, alienation, or mental health complications. His clients include business owners, public figures, entrepreneurs, C-suite executives, high-net-worth families, medical and legal professionals, and their spouses.
THERESA BEA is an associate attorney at Berg, Debele, DeSmidt, & Rabuse, P.A., formerly known as Walling, Berg, & Debele, P.A. She has limited her practice to all areas of family and juvenile law. She was admitted to the Minnesota State Bar in 2013 and the Minnesota Federal Bar in 2016. Prior to starting her practice, she clerked for the Honorable Jeannice M. Reding in family court of the 4th Judicial District.
1 See Abbott v. Abbott, 282 N.W.2d 561 (Minn. 1979).
2 Gail Rosenblum, “In Minnesota a ‘common sense’ change in alimony,” Star Tribune 5/22/2016.
3 See generally, Cathy E. Gorlin, “Minnesota’s new living-together law will cause unintended results,” MinnPost, 7/19/2016.
4 See Schisel v. Schisel, 762 N.W.2d 265, 269-270 (Minn. Ct. App. 2009) (interpreting the term “primary residence” in Minn. Stat. §518.175, subd. 5); Suleski v. Rupe, 855 N.W.2d 330, 335 (Minn. Ct. App. 2014) (same), citing Minn. Stat. §645.08(1) (2016) (“words and phrases are construed according to rules of grammar and according to their common and approved usage; but technical words and phrases and such others as have acquired a special meaning, or are defined in this chapter, are construed according to such special meaning or their definition.”)
5 “Cohabit.” AHDictionary.com. American Heritage Dictionary, n.d. Web. 11/20/2016.
6 “Cohabit.” Merriam-Webster.com. Merriam-Webster, n.d. Web. 11/20/2016.
7 H.F. 1333, 89t Leg., Reg. Sess. 15-3223 (2015-2016).
8 While each of these scenarios may not support a finding of cohabitation under subdivision 6, modification may still be appropriate on other grounds. In the first case, where a roommate reduces a recipient’s expenses, modification could be supported based on the “substantially decreased need of the obligee,” so long as the obligee’s need does not fall below the marital standard of living. Minn. Stat. §518A.39, subd. 2(a)(2). Alternatively, even if a maintenance recipient does not “cohabit” but receives substantial gifts from a new romantic partner, such gifts could be considered a “substantial increase in gross income of the obligee.” Minn. Stat. §518A.39, subd. 2(a)(1); see also Barnier v. Wells, 476 N.W.2d 795 (Minn. Ct. App. 1991) (including regularly received gifts as “gross income” for child support purposes.); Lee v. Lee, 775, fn. 5 N.W.2d 631 (Minn. 2009) (treating as equivalent the terms “gross income” for child support purposes and “income” for spousal maintenance purposes).
9 Minn. Stat. §518.552, subd. 6(a)
10 Kielley v. Kielley, 674 N.W.2d 770, 775 (Minn. Ct. App. 2004).
11 Sieber v. Sieber, 258 N.W.2d 754, 757 (Minn. 1977).
12 Loo v. Loo, 520 N.W.2d 740, 743-44 (Minn. 1994).
13 Phillips v. Phillips, 472 N.W.2d 667, 680 (Minn. Ct. App. 1991), citing Kiesow v. Kiesow, 133 N.W.2d 652, 658 (Minn. 1965).
14 Hauschildt v. Beckingham, 686 N.W.2d 829, 840 (Minn. 2004).
15 Claybaugh v. Claybaugh, 312 N.W.2d 447 (Minn. 1981); Cisek v. Cisek, 409 N.W.2d 233 (Minn. Ct. App. 1987); Beck v. Kaplan, 566 N.W.2d 723 (Minn. 1997).
16 See O’Donnell v. O’Donnell, 678 N.W.2d 471, 477 (declining to modify a stipulated child support award where changes were foreseeable); see also Hill v. Hill, No. A14-1752, 2015 WL 5511444, at *4 (Minn. Ct. App. 9/21/2015) (declining to modify child support where increase in mother’s income was foreseeable); c.f. O’Mara-Meyer v. Meyer, No. A15-1748, 2016 Minn. App. Unpub. 914 (Minn. Ct. App. 9/19/2016) (reversing a denial of husband’s spousal maintenance modification motion based on district court’s findings that circumstances cited by husband were already “contemplated and considered.”)
17 Minn. Stat. §518.552, subd. 5; Karon v. Karon, 435 N.W.2d 501 (Minn. 1989); Butt v. Schmidt, 747 N.W.2d 566 (Minn. 2008).
18 See generally, Gossman v. Gossman, 847 N.W.2d 718 (Minn. Ct. App. 2014).
19 Minn. Stat. §518.552, subd. 5(b).
20 See Minn. Stat. §518.552, subd. 5 (permitting the parties to restore the court’s jurisdiction to modify maintenance by agreement).
21 C.f. Minn. Stat. §518.18(a)-(b) (imposing more stringent temporal limitations on motions to modify custody).
22 C.f. Bollenbach v. Bollenbach, 175 N.W.2d 148, 155 (Minn. 1970).
23 Sieber v. Sieber, 258 N.W.2d 754 (Minn. 1977); Abbott v. Abbott, 282 N.W.2d 561 (Minn. 1979); Auer v. Scott, 494 N.W.2d 54 (Minn. Ct. App. 1992); Aaker v. Aaker, 447 N.W.2d 607 (Minn. Ct. App. 1989).
24 Abbott, 282 N.W.2d at 565.
26 Curtis v. Curtis, No. A14-1841, – N.W.2d – (Minn. 2016)
27 Dobrin v. Dobrin, 569 N.W.2d 199, 201 (Minn. 1997).
28 Supra note 1.
29 See Hopf v. Hopf, No. A08-0652, 2009 Minn. App. Unpub. LEXIS 365 (Minn. Ct. App. 4/7/2009) (denying a motion to modify maintenance based, in part, on gifts from a significant other, where the recipient and her partner testified the relationship ended due to the stress of litigation).
30 Abbott, 282 N.W.2d at 565.
31 Minn. Stat. §518.552, subd. 6
32 Wibbens v. Wibbens, 379 N.W.2d 225, 226 (Minn. App. 1985).
33 Statute does not offer a meaningful distinction between these two terms, and case law appears to use them synonymously. The extent to which each term is intended to denote distinct relief remains uncertain.
34 See Minn. Stat. § 518A.27, subd. 1 (2016)
35 Prahl v. Prahl, 627 N.W.2d 698, 703 (Minn. App. 2001).
36 See Van De Look v. Van De Look, 346 N.W. 173, 178 (Minn. App. 1984) (affirming reservation of maintenance because wife’s cancer, although in remission, could recur); Wopata v. Wopata, 498 N.W.2d 478, 485-86 (Minn.App.1993) (affirming reservation of maintenance despite husband’s self-sufficiency because past heart problems made future self-sufficiency uncertain); Tomscak v. Tomscak, 352 N.W.2d 464, 466 (Minn.App.1984) (requiring reservation of maintenance issue because spouse’s cancer could recur and make maintenance necessary).
37 Taylor v. Taylor, 1996 Minn. App. LEXIS 634, *7, 1996 WL 278232 (Minn. Ct. App. 5/20/1996); see also Winer v. Winer, No. A15-0339, 2016 Minn. App. Unpub. LEXIS 144, *28 (Minn. Ct. App. 2/8/2016) (requiring a court to reserve jurisdiction over spousal maintenance where an obligee had sufficient income from assets to meet her present monthly needs, because future need for maintenance in retirement was uncertain).