Law Office of John S. Palmer Attorney at Law

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Alimony and Long Term Care

Posted Friday, March 21, 2014 by John S. Palmer

Washington law permits an award of maintenance (commonly known as alimony) “in such amounts and for such periods of time as the court deems just, without regard to misconduct, after considering all relevant factors” including the length of the marriage or domestic partnership; the standard of living established during the relationship; the age, health, financial obligations, and financial resources of the party seeking maintenance; and the other party’s ability to pay maintenance while still meeting his or her own needs and financial obligations.

Because a decree of dissolution is intended to finalize the parties’ obligations to each other, a party cannot seek maintenance after a decree is entered. This finality can be problematic if the party is fairly healthy but has a condition that may worsen over time and result in substantial uninsured medical expenses or long term care costs in the future.

One potential way to address this problem would be to award nominal maintenance as a way for the court to maintain jurisdiction over the parties; the ill party would then be able to seek a modification of the maintenance award if his or her condition worsened. However, the Washington Court of Appeals reaffirmed earlier this month that it is an abuse of a trial court’s discretion to make an award of “placeholder” maintenance based only on speculation or conjecture that a chronic disease may worsen.

Washington appellate courts have addressed the issue before. In the 1962 case of Morgan v. Morgan, the Washington Supreme Court held that a maintenance award of $150 per month was improper because the award was “conjectural” and:

There is no evidence of an existing or reasonably anticipated future impairment of respondent’s health that now adversely affects her earning capacity. It is, therefore, clear that a finding of necessity, upon which an award of alimony depends, cannot be based upon the conjectural possibility of a future change in circumstances.

In 1983, the Court of Appeals relied on Morgan to overturn a maintenance award of $1 per year in Marriage of Rouleau because the award was speculative; the trial judge had acknowledged that the disabled husband had no current need for maintenance and that the award was made only to permit him to seek a modification if his circumstances changed in the future.

In the case decided this month, Marriage of Valente (decided March 10, 2014) the wife presented the trial court with a “life care plan” estimating that her multiple sclerosis and rheumatoid arthritis would result in future uninsured medical expenses of more than $468,000. However, her doctor testified that her MS was relatively stable, and its progression was unpredictable. The court awarded her over $3.2 million in assets, representing 55% of the community property, plus almost $500,000 in separate property, but declined to award her additional assets to fund the care plan.

The husband was also ordered to pay maintenance of $10,000 per month until the wife turned 62, $1,000 per month until age 72, and then $100 per month until either party died or the wife remarried. In making that ruling, the trial judge indicated that the last portion of the award was only made to permit the wife to seek an adjustment after age 72 if her condition worsened and that $100 per month amount was “somewhat arbitrary.” The Court of Appeals found that portion of the award to be an impermissible placeholder award:

While maintenance is a flexible tool, there is no showing that the legislature intended to grant broad authority for open-ended maintenance…Maintenance cannot be used as an insurance policy against potential hardship in the absence of specific findings regarding the certainty that those hardships are likely to occur.

Therefore, it was an abuse of the trial court’s discretion to award maintenance beyond age 72 without finding that the wife’s condition was likely to worsen and that she would need additional maintenance. The court declined to say that a placeholder award would never be permissible, stating:

We do not address whether there could ever be facts supporting the use of a placeholder award to retain jurisdiction under different circumstance, e.g., if a trial court entered specific findings as to the likelihood of future medical expenses or worsening condition.

The Court of Appeals also rejected the wife’s argument that she should have received additional assets to pay for her life care plan, stating the trial court was not required to accept the plan and there was no evidence the trial court abused its discretion by declining to fund it.

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Law Office of John S. Palmer11911 NE 1st St, Ste. B204,Bellevue, WA 98005-3056