Mod and Non-Mod? Two Types Spousal Maintenance in Arizona

Sometimes clients get confused by the fact there are two types of spousal maintenance in Arizona: modifiable and non-modifiable.  When first considering the differences, it might seem they’re not too unlike each other.  The differences are subtle and boil down to how confident the parties to a divorce are about their future finances.

Each type of spousal maintenance in Arizona warrants review, as there are important distinctions between them that could dictate years of your life.

Review of Spousal Maintenance in Arizona

Spousal maintenance in Arizona is a discretionary award that can be assigned in divorce cases.  It’s not typically awarded in cases where the marriage was of a short duration.

However, in some extraordinary cases, even a marriage of short duration can be overcome by the court finding the other spouse has reasonable needs that should be met.

Courts have a two step approach in deciding issues of spousal maintenance.  First, the court considers whether one spouse is entitled to spousal maintenance. Under A.R.S. 25-319, the Court looks to the length of the marriage, ability to pay, ability to remain self-sufficient, and amount contributed to the educational opportunities of the other spouse (see our further discussion here). Some courts consider other factors as well, but unlike other states, Arizona courts do not consider marital misconduct in awarding spousal maintenance.

If the court finds maintenance is in order, it will then consider the amount and duration of the maintenance.  In Arizona, there is no guaranteed formula the court will follow.  The dynamic of spousal maintenance is decidedly fact-based based on the circumstances of each situation.  Widely different orders can be entered by the same judge on the same day.

Once an order of spousal maintenance is entered, the Court has the right to modify the award if, at any time before the award should end,  justice would require the modification. This means that if one party were to lose their job or require more money for another compelling reason, the parties could find themselves back in court.

Non-Modifiable Spousal Maintenance

Some parties seek non-modifiable spousal maintenance.  This means that the parties waive the right for the Court to review the maintenance award in the event of a substantial change. Objectively, this can be a risky agreement; there’s no telling what needs you might have in just a few months.

Despite the risk, there are many reasons to seek non-modifiable spousal maintenance in Arizona. One compelling reason is consistency of the obligation you expect to receive, especially if you’d rather know exactly what you face in the years ahead than live with the idea that your financial requirements might change.  Additionally, knowing what you have to pay can make budgeting much easier.

Another reason parties may agree to non-modifiable support is employment-based.  The chance that one party begins making more money could put the spousal maintenance award in jeopardy if brought back to court.  The fact that parties lock in the spousal maintenance regardless of the employment changes they encounter might be good in some instances, and  it also brings us to the primary risk that non-modifiable spousal maintenance presents.

Risks of Non-Modifiable Spousal Maintenance

Regardless of the reasoning behind agreeing to non-modifiable support, once agreed upon, the Court won’t consider a change in circumstances.  So even if you lose your job and your ex gets a raise, you’ll be set to the same amount you’ve been getting since the agreement was made.  People with volatile employment run the risk of falling behind on their payments.  This situation can be catastrophic for clients.

This can also be frightening; so many aspects of our lives can become unstable with divorce.  Though you might be able to keep everything together for the length of the case, who knows what will happen when an unforeseen medical issue arises or you lose your job.

Non-Modifiable Spousal Maintenance as a Strategy 

Just because there are some risks associated with non-modifiable spousal maintenance doesn’t mean it should always be avoided.  It can be a high-risk, high-reward negotiation tactic.   By considering a non-modifiable award, you might open up new avenues of compromise. Not only that, but a non-modifiable agreement provides more financial security and can keeps legal costs down.  And sometimes, a bit of extra risk is worth getting the property that would otherwise be considered a community asset.

Just try not to lose your job.

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