Legal Memorandum: Extra-judicial Agreement for Support

Issue: If an ‘extra-judicial agreement’ regarding support or maintenance exists between parties, what is the effect of Minn. Stat.  518A.39, subd. 2(e) in Minnesota?

An agreement to vacate arrearages would not be enforceable because of application of Minn. Stat. § 518A.39, subd. 2(e), which provides:

A modification of support or maintenance, including interest that accrued pursuant to section 548.091, may be made retroactive only with respect to any period during which the petitioning party has pending a motion for modification but only from the date of service of notice of the motion on the responding party….

Minn. Stat. § 518A.39, subd. 2(e).  “[F]orgiveness of arrearages is a retroactive modification.”  Postell v. Postell, No. A09-731 (Minn. App. Apr. 13, 2010) (citing Allan v. Allan, 509 N.W.2d 593, 597 (Minn. App. 1993)).

In the Postell case, the appellate court held that the district court did not have authority to retroactively modify the maintenance amount under § 518A.39, subd. 2(e), because there was no motion for modification of maintenance pending during the period of maintenance.  Id.  Because there was no motion for modification pending during the period these maintenance arrears accrued, § 518A.39, subd. 2(e), takes away the court’s authority to vacate the arrears.

In McNattin v. McNattin, 450 N.W.2d 169 (Minn. App. 1990), the court relied on an extrajudicial stipulation regarding child support to deny the petitioner child support payments.  Similarly, in LeTourneau v. LeTourneau, No. C3-99-622 at n.2 (Minn. App. Nov. 9, 1999), the court referenced the parties’ stipulation, which apparently was written and addressed child support not spousal maintenance.  The LeTourneau court noted, however, that Minnesota law requires stipulations to “express the parties’ […]