SENATE BILL REPORT

HB 1621

BYRepresentatives Belcher, Jacobsen, Cole, R. King, R. Fisher, Bowman, Appelwick, Locke, Morris, Nelson, Haugen, Anderson, O'Brien, Wineberry and Brekke

Adding an additional factor of past, present, and future earning capacity into the spousal maintenance determination.

House Committe on Judiciary

Senate Committee on Law & Justice

Senate Hearing Date(s):March 15, 1989

Majority Report:  Do pass as amended.

      Signed by Senators Pullen, Chairman; Madsen, Nelson, Niemi, Talmadge, Thorsness.

Senate Staff:Richard Rodger (786-7461)

                  March 15, 1989

AS REPORTED BY COMMITTEE ON LAW & JUSTICE, MARCH 15, 1989

BACKGROUND:

A marriage dissolution may result in various financial obligations for either or both of the former spouses.  These obligations generally take one or more of three forms:  child support, spousal maintenance, or property settlement.  The Legislature has created a fairly tight statutory scheme for determining child support obligations.  Spousal maintenance and property settlement decisions, however, are left largely to the discretion of the court.

The statute requiring the division of marital property directs the court to make a "just and equitable" disposition after considering "all relevant factors." A short, non-exclusive list of four such factors is included in the statute, but the court is obviously free to exercise a great deal of discretion in fashioning a settlement.  Likewise, spousal maintenance may be ordered "as the court deems just."  Again, there is a short, non-exclusive list of relevant factors to be considered.

Case law has reinforced the principle of wide judicial discretion in ordering property settlements and maintenance.

The courts have also directly addressed the issue of one spouse's contribution towards the other spouse's earning power.  The typical example of this kind of case is one in which a spouse drops out of school to work or gives up a job in order for the other spouse to pursue a career in another location.  While finding it unnecessary to characterize an educational degree or career prospect as "property," the courts have held that such an item is a "relevant factor" to be considered in making a "just and equitable" property settlement under that statute.  The courts have also held that the foregone opportunity of a spouse to pursue such a degree or career is a "relevant factor" in a property settlement.

In addition, courts have generally allowed a high degree of interchangeability between property settlements and spousal maintenance.  For instance, property settlements may be awarded on an installment basis and maintenance in a lump sum, reversing the normal pattern.  Courts also consider the amount awarded in one category when deciding how much to award in the other.

SUMMARY:

The earning capacity of spouses is explicitly listed as one of the factors that a court is to consider in awarding spousal maintenance in a marriage dissolution.  The court is to consider the past, present, and future earning capacity of both spouses and whether that capacity was enhanced, diminished or foregone during marriage.

SUMMARY OF PROPOSED SENATE AMENDMENT:

Gender-specific language is eliminated.

Appropriation:    none

Revenue:    none

Fiscal Note:      none requested

Senate Committee - Testified: Representative Belcher (pro)