Modifying Non-Modifiable Spousal Maintenance

Non-modifiable spousal maintenance cannot be modified, but there may be equitable defenses to an enforcement action
  • If both parties agree to make spousal maintenance non-modifiable and the obligor subsequently becomes disabled or unable to pay, can the court modify non-modifiable spousal maintenance?

A.R.S. § 25-317(G) provides that the court loses jurisdiction to modify non-modifiable spousal maintenance upon the entry of the decree:

[E]ntry of a decree that sets forth or incorporates by reference a separation agreement that provides that its maintenance terms shall not be modified prevents the court from exercising jurisdiction to modify the decree and the separation agreement regarding maintenance, including a decree entered before July 20, 1996.

In re Marriage of Waldren (2007)

In the case In re Marriage of Waldren, the supreme court held that § 25-317(G) prohibits the obligor from filing any post-decree motions to modify spousal maintenance, even in extreme circumstances. 217 Ariz. 173, 171 P.3d 1214 (2007). The decree in Waldren incorporated the parties’ agreement that the husband would pay non-modifiable spousal maintenance for 60 months. Less than two years later, the husband became disabled and his income was limited. He moved to terminate under Ariz. R. Civ. P. 60(c)(5) which provides relief from a “final judgment, order or proceeding [if] it is no longer equitable that the judgment should have prospective application.”

The court concluded that procedural “rules must yield to statutory provisions on substantive matters such as the court’s subject matter jurisdiction.” Because § 25-317(G) eliminated the superior court’s jurisdiction to modify decrees regarding non-modifiable spousal maintenance, “[a]llowing Husband relief under Rule 60(c)(5) would permit the court’s procedural rule to govern the substantive statute that limits the court’s jurisdiction in such matters.”

Coburn v. Rhodig (2017)

In Coburn v. Rhodig, the court of appeals addressed a similar issue. 243 Ariz. 24, 400 P.3d 448 (App. 2017). In this case, the parties also agreed to non-modifiable spousal maintenance. The parties later agreed to modify and shorten the spousal maintenance term. After the husband paid the agreed-upon amount, the wife filed for enforcement of the full amount set forth in the parties’ consent decree.

The court of appeals found this case distinguishable from Waldren. The husband in Coburn did not ask to modify or terminate his spousal maintenance obligation. Rather, he was defending a petition for enforcement filed by his ex-wife. Although the court did not have jurisdiction to modify or terminate the decree, the husband may still establish an equitable defense to enforcement. If he succeeds, the court need only deny the wife’s petition to enforce.

The court analogized Coburn to similar cases involving child support, where the obligor established an equitable defense even though child support orders cannot be retroactively modified. See Ray v. Mangum, 163 Ariz. 329, 788 P.2d 62 (1989); Cordova v. Lucero, 129 Ariz. 184, 629 P.2d 1020 (App. 1981).

In most cases, non-modifiable spousal maintenance is truly non-modifiable. However, there may be other avenues in defending a request for arrearages. If the other party delayed in filing for enforcement or agreed to accept a lesser amount, they may be barred from enforcing the award.