Spousal maintenance can be either modifiable or non-modifiable. Generally, when a spousal support order is the byproduct of an agreement between the spouses, after the divorce decree is entered, neither one of the parties or the Court can modify the duration or amount set forth in the support order. Thus, one of the benefits of resolving spousal support through settlement is the certainty that the terms of the support order cannot be changed, regardless of any subsequent change in circumstances.
Spouses can also agree as to whether the support order will terminate on the death of either spouse, or the remarriage of the spouse receiving the support payments. The default under Arizona law is that “the obligation to pay future maintenance is terminated on the death of either party or the remarriage of the party receiving maintenance.”
“If both parties agree, the maintenance order and a decree of dissolution of marriage or of legal separation may state that its maintenance terms shall not be modified.” Arizona law provides that once the non-modifiable support terms are set forth or incorporated in a filed Decree of Dissolution, the Court lacks “jurisdiction to modify the decree and the separation agreement regarding maintenance.” In other words, once the parties’ agreement that spousal support will not be modifiable is entered as a court order, a subsequent event that would otherwise warrant a modification would have no effect on the support order, even if the subsequent event was not contemplated by the parties during their negotiations.
If parties are unable to resolve a spousal support dispute without the Court’s intervention, the Court is responsible to determine, as a threshold matter, whether the requesting party is entitled to spousal support. If the Court finds that the party seeking support is eligible under any of the enumerated factors, then it orders the amount and duration of spousal support. The Court then retains continuing jurisdiction over spousal support issues during the entire time the order is in effect.
During the term of the support order, either party may file a petition requesting to modify the existing order. In that petition, the party requesting the modification must allege “facts that establish the existence of substantial and continuing changes in circumstances that support the requested modification.” A petition that does not comply with this requirement is subject to dismissal.
Within 20 days after a petition to modify spousal maintenance is served, each party must disclose their financial condition, by filing and exchanging updated Affidavits of Financial Information. The modification action then proceeds as a post-decree proceeding, and is ultimately resolved through settlement or an evidentiary hearing. If a hearing is necessary, the Court will assess the request to modify using the same statutory criteria that governs an initial award of spousal maintenance. After the hearing, the Court will issue an order denying the request to modify, or increasing, reducing, or terminating the preexisting support order.
- A.R.S. § 25-327(B).
- A.R.S. § 25-319(C).
- A.R.S. § 25-317(G).
- The Court may, however, decline to enforce a spousal support order in limited circumstances, if equitable considerations warrant it. In 2017, the Arizona Court of Appeals held that although the trial Court lacks jurisdiction to modify a non-modifiable support order, it may still deny a petition to collect support arrearages based on the other party’s equitable defenses to the arrearage claim. See Coburn v. Rhodig, 243 Ariz. 24, 26, ¶ 10, 400 P.3d 448, 450 (App. 2017).
- See A.R.S. § 25-319(A).
- See A.R.S. § 25-319(D).
- Ariz. R. Fam. L.P. 91.1(a).