Generally, in the State of Arizona, spousal maintenance (sometimes referred to as spousal support or alimony) can generally be modified by the court if there has been a significant and continuing change in circumstances. See _{^{ARIZ. REV. STAT. ANN.}} § 25-327(A). However, when the parties agree to it, Arizona law does allow for an award of non-modifiable spousal maintenance. See _{^{ARIZ. REV. STAT. ANN.}} § 25-319(D) (“If both parties agree, the maintenance order and a decree of dissolution of marriage or of legal separation may state that its maintenance terms shall not be modified.”). As the Arizona statute makes clear, when an order of spousal maintenance is non-modifiable, Arizona courts lack jurisdiction to modify the order. See _{^{ARIZ. REV. STAT. ANN.}} § 25-317(G). Furthermore, the procedural rules of Arizona courts (such as the rule that permits relief when an order is prospectively inequitable) cannot be used to sidestep Arizona legislature’s “divestiture of jurisdiction . . . .” See Waldren v. Waldren, 171 P.3d 1214 (Ariz. 2007). However, there are a few fine points to consider.

First, Arizona statute provides that “[u]nless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated on the death of either party or the remarriage of the party receiving maintenance.” _{^{ARIZ. REV. STAT. ANN.}} § 25-327(B). The Arizona Court of Appeals has held that unless an award of non-modifiable spousal maintenance specifically states that award survives death or remarriage, such an award terminates in the either instance. See Palmer v. Palmer, 170 P.3d 676 (Ariz. App. 2007); Diefenbach v. Holmberg, 26 P.3d 1186 (Ariz. App. 2001). Thus, while not strictly a form of modification, there are times when new circumstances might terminate the non-modifiable spousal support altogether.

Second, while an Arizona court’s equitable powers do not allow an Arizona court to disturb a non-modifiable spousal maintenance award, equitable defenses may be asserted in response to an action to collect arrearages. See Coburn v. Rhodig, 400 P.3d 448 (Ariz. App. 2017). As the Arizona Court of Appeal has noted, “[a]pplication of equitable defenses in response to a petition to collect arrearages does not require the court to modify or terminate the decree . . . .” Id. Therefore, defenses like waiver, estoppel, or laches may be considered by an Arizona court deciding whether to enforce its past orders for spousal maintenance. See id.

Third, while an Arizona court may generally lack jurisdiction to modify a non-modifiable spousal maintenance award, this does not apply to a spousal maintenance order that was obtained through fraud on the court. See McNeil v. Hoskyns, 337 P.3d 46 (Ariz. App. 2014). In McNeil, the parties agreed to a non-modifiable award of spousal maintenance. See id. However, the former wife received overpayments of spousal support, which she did not disclose the court before filing a petition to enforce spousal maintenance arrearage payments. See id. The trial court found that the wife had engaged in three instances of fraud and order the modification of the non-modifiable spousal maintenance order. See id. On appeal, the Arizona Court of Appeals affirmed the trial court and found that the statute divesting the trial court of jurisdiction to modify a non-modifiable award of spousal maintenance did not apply when the non-modifiable order was the product of fraud upon the trial court. See id.

Each divorce and separation situation is unique, with its own facts and circumstances, and it is not possible to list and describe every single aspect that might be relevant to a particular case or claim. If you are dealing with divorce or legal separation, it is always advisable to consult with an experienced family law attorney who can provide you with guidance. If you are seeking to obtain, modify, enforce, or defend a spousal maintenance order in the State of Arizona, Huffman-Shayeb Law, PLLC may be able to help you with your case. Contact Huffman-Shayeb Law, PLLC to schedule a consultation with an experienced family law attorney today!