In an Arizona divorce case, the family court judge is authorized to award spousal maintenance if the judge determines it is warranted under A.R.S. § 25-319. By agreement between a husband and wife only, the spousal maintenance order may be made non-modifiable. A.R.S. § 25-319 (C).
Unless otherwise specifically agreed in writing or expressly provided in the divorce decree, spousal maintenance orders terminate upon the death of either party or upon the remarriage of the party receiving maintenance. A.R.S. § 25-327 (B). This holds true even when the spousal maintenance order provides that it is “non-modifiable.” For example, a spousal maintenance order which provides, by agreement of the parties, that “husband shall pay wife non-modifiable spousal maintenance of $1,000 per month for five years” terminates in the event of either party’s death or wife’s remarriage even though the order specifically states that it is “non-modifiable.”
Arizona courts have specifically held that, in order to make a “non-modifiable” spousal maintenance order survive either party’s death or the remarriage of the party receiving maintenance, the order must specifically state that, for example, “spousal maintenance shall not terminate even in the event of either party’s death or wife’s remarriage.” Palmer v. Palmer, 170 P.3d 676, 217 Ariz. 67 (Ariz. App., 2007) (“non-modifiable” spousal maintenance terminates upon the remarriage of the recipient spouse unless the decree expressly provides otherwise); Diefenbach v. Holmberg 26 P.3d 1186, 200 Ariz. 415 (Ariz. App., 2001) (“non-modifiable” spousal maintenance terminates on the death of the recipient spouse unless the decree expressly provides otherwise).
Except in the event of either party’s death or the remarriage of the party receiving maintenance, “non-modifiable” spousal maintenance is indeed non-modifiable. In the Arizona case of Waldren v. Waldren, 131 P.3d 1067, 212 Ariz. 337 (Ariz. App., 2006), the Arizona Court of Appeals, Division 1, held that, despite an agreed-upon spousal maintenance order which was by its terms non-modifiable, when the spousal maintenance payor became disabled after entry of the divorce decree, he could properly move to have the spousal maintenance order set aside under a procedural rule1, thereby effectively modifying or terminating his spousal maintenance obligation.
The Arizona Supreme Court then reversed the Court of Appeals’ decision, holding that non-modifiable spousal maintenance agreements/orders made pursuant to A.R.S. § 25-317 (G) and § 25-319 (C) “are not subject to modification or termination, nor is relief from such provisions available under Rule 60 (c) (5).”2 In essence, the Arizona Supreme Court found that Arizona statutes trump procedural rules. When a spousal maintenance agreement/order is made non-modifiable under the authority of the applicable statutes,3 an Arizona court has no jurisdiction thereafter to consider setting the order aside (which would be tantamount to a modification) under ARFLP 85 (c) (1) (e).Waldren, 171 P.3d at 1218-1219. A motion to set aside under ARFLP 85 (c) (1) (e) cannot be used to make an “end run” around the non-modifiability statutes.
In sum, Arizona courts have held that “non-modifiable” spousal maintenance awards are virtually ironclad. Absent the death of either party or the remarriage of the recipient of spousal maintenance, “non-modifiable” maintenance awards are indeed non-modifiable.
1 Arizona Rule of Civil Procedure (“A.R.C.P.”) 60 (c) (5), the civil procedure counterpart to what is now in family court cases Rule 85 (C) (1) (e) of the Arizona Rules of Family Law Procedure.
2 Now Arizona Rule of Family Law Procedure 85(C) (1) (e).
3 A.R.S. § 25-317 (G) and § 25-319 (C).