By: Max Nicholas Hanson, Esq.
Now, you've gone to trial in your divorce or legal separation case
and the Court awarded one of the parties spousal maintenance for a certain
amount payable each month and over a certain time period or even indefinitely.
Once the appeal period ends or all appeals are exhausted, this order is
pretty much the end of the story, right? Not so fast - spousal maintenance
awards are always presumptively modifiable, unless the parties have specifically
agreed that award is non-modifiable in amount and/or duration. What this
means is that the monthly amount can be adjusted up or down or the time
frame for payments can be extended or shortened by the Court while the
order is in effect.
First, in looking at a modification, we need to be aware of the term of
the original order and whether it is still in effect. The Court only has
jurisdiction to modify spousal maintenance during the time it is in effect.
For example if the order is for $500 for 24 months (or 2 years) commencing
on July 1, 2016, then it terminates on June 30, 2018; any petition to
modify the spousal maintenance order needs to be brought on or before
June 30, 2018 for the Court to have jurisdiction (meaning the authority
or right) over such a modification. Pursuant to A.R.S. § 25-327 (B),
an award for spousal maintenance may also terminate upon the receiving
party's remarriage or the death of either party, even if that occurs
prior to the end of the duration of award originally ordered. If an action
to modify spousal maintenance is brought after the termination of the
spousal maintenance award, under any of the above scenarios, it is too
late for any modification and the issue is moot - case over.
But if either party is seeking to modify the award prior to one of these
termination events, then the Court will have jurisdiction over this issue
and can modify spousal maintenance, either the amount or duration, as
long as the party requesting the modification
shows a substantial and continuing change in circumstances since the original
order was entered. What does this mean?
First, it must be
substantial and continuing. The change in circumstances must be more than a minor change in one or
both of the parties' financial, employment, or medical/health circumstances.
The change must be substantial like the loss of a job, a large increase
in income such as a lottery win, or a new and debilitating medical condition,
not a simple but relatively minor decrease or increase in income or a
voluntary act to leave employment. Then, even if the circumstance is substantial,
it may not be continuing. A large bonus received by one of the parties
may be only a one-time event or a forced lay-off from employment may only
be for a short time before another position is obtained, and therefore,
such a circumstance might be substantial
but not continuing in nature for purposes of a modification.
Additionally, the substantial and continuing change in circumstances must have
occurred in the interim since or after the original order for spousal maintenance
was entered. It is not a time to try to "re-visit" or re-hash arguments
made in the original trial - a modification must be justified by something
new that has occurred since the original award for spousal maintenance
was ordered that somehow changes the playing field, such as the paying
party was hit by a bus and now is a paraplegic and no longer can work.
It also needs to be an actual change, not something that hasn't happened
yet but you speculate could happen in the future, ie., I might want to
retire in the future or I am healthy now but could have a reoccurrence
of a medical condition down the road is not an actual change that has
occurred. The substantial and continuing change in circumstances must
occur prior to filing of the petition and prior to the expiration or termination
of the order itself. An attempt to modify or extend spousal maintenance
support beyond the original termination date to try to "keep the
door open" on a support award for such possible circumstances in
the future is disfavored under Arizona law and improper.
If you are the one seeking a modification of a spousal maintenance award,
you have the burden to prove to the Court that there has been a definite
change in circumstances since the entry of the original order, that this
change in circumstances is new, and that this change is both substantial
and continuing. If you are thinking about attempting to modify your spousal
maintenance order or the other party has filed to modify the existing
order, talk with one of our experienced Attorneys and call
OWENS & PERKINS at
schedule a free 30 minute consultation.