By: Max Nicholas Hanson, Esq.
If you’ve been following along with our series this month on spousal maintenance, you can see the problems inherent with taking a spousal maintenance claim to trial and having a judge, with limited time to spend hearing evidence and possibly experience in handling such an issue, having the wide discretion to determine an issue that could have such far-reaching implications for your financial future. And even if a judge determines that an award of spousal maintenance is justified and sets an amount and time frame for payment of alimony, it is always modifiable after trial. I’ve seen cases where we have spent literally YEARS, in some cases longer than the marriage itself, litigating over a modification, whether to terminate it early and/or decrease the amount OR to increase the amount and/or extend it for a longer time period. The fights over this issue can be brutal.
There are a couple of ways to prevent spousal maintenance from becoming “the thing that never dies” part of your divorce. At the very beginning, prior to your marriage, consider having a Prenuptial Agreement prepared. We are able to craft provisions in Prenuptial Agreements to fix or cap the amount and duration for any spousal maintenance to be paid, or even to waive spousal maintenance altogether for either spouse in the event of a divorce or legal separation.
Absent a Prenuptial Agreement, the parties can negotiate their own terms for spousal maintenance or waive spousal maintenance and make such agreements non-modifiable during the divorce proceedings prior to trial. In a settlement agreement, the parties have flexibility to negotiate for a lump sum instead of payment over time, trade off or offset spousal maintenance for another asset, and include provisions for life insurance to secure any agreed spousal maintenance among other things. And of course, you can fix the amount and duration of any agreed spousal maintenance making it non-modifiable in both amount and duration. Not only can you gain peace of mind that the issue is resolved once and for all, but a wide range of options to fit your particular financial situation can be explored and taken into account in a settlement – options that are not available for a judge to consider or order at Trial.
If you are thinking about getting a divorce, currently in a divorce, or even just getting married, and this month’s four (4) part spousal maintenance series has given you pause, please call OWENS & PERKINS at 480.630.2464 to schedule a free 30-minute consultation with one of our experienced attorneys.