Modifications to Spousal Maintenance
Most agreements that are negotiated outside of court have a non-modifiable clause that prevents either party from modifying. As an aside, if you have not yet agreed on spousal maintenance, this is an important consideration. Most agreements include a non-modifiable clause. It provides certainty for both parties to plan their lives. If you had a court decide your spousal maintenance you will not have a non-modifiable clause because courts will not include such a term. A court could have ordered spousal maintenance for a set term of year and during that time set by the court, the order can be modified. After the set term of years has ended, it can no longer be modified.
Requirements for modification require that either party allege significant and ongoing change of circumstances. There may also be circumstances outlined in your spousal maintenance agreement if it was a negotiated settlement. Court decided spousal maintenance does not address any such circumstances and the court will only agree to even hear about a modification if it is brought during the term of years that the court ordered it to be paid. Typical reasons to allege in a modification, after the significant change of circumstances is alleged:
- Salary or income change that is significant. A party cannot quit a job voluntarily to reduce maintenance after it is ordered. There cannot be reasons presented that were already in the first trial.
- The party receiving spousal maintenance remarries. Almost all situations stop spousal maintenance upon marriage of the party receiving the payments.
- Receiving party begins living with a partner, especially if that new arrangement reduces expenses for the party receiving the money.
- Death of either party stops spousal maintenance. It does not keep going into the estate nor can it have a creditor status against the estate.
Here is the Arizona Spousal Maintenance Calculator available through the Arizona Judicial Branch that can help you with a Spousal Maintenance Worksheet. This can be used for the initial spousal maintenance case and the modification.
Here is an Affidavit of Financial Information link. This AFI must be completed or the court will not hear your case. (Be careful to avoid disclosing indemnifying financial information that could be used to commit fraud against you if the document became public.)
For any dissolution or legal separation case filed on or after September 24, 2022, if spousal maintenance is requested, a Spousal Maintenance Worksheet must be completed and filed with the court.
How To Modify Spousal Maintenance
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Frequently Asked Questions
How is spousal maintenance treated by the IRS?
As of 2019, spousal maintenance is no longer tax-deductible for the payer nor is it taxable income for the receiving party. This changed the way you could compare pre and post 2019 awards since the math changes dramatically with these tax changes.
My wife remarried two years ago and I just found out.
You can file a petition and ask that your spousal maintenance be stopped immediately and that you are due a reimbursement.
My former husband quite his job after our trial to avoid paying the court ordered spousal maintenance.
Your former husband will continue to owe you the court ordered amount. You can file a petition for enforcement and the court will assist you in getting him to pay the award and the arrears with interest.
My former husband has quit his job and filed for a modification after the trial court awarded me spousal maintenance.
Your former husband will have to show a substantial change of circumstances and the court will wonder why his job changed. If he quit his job just to avoid paying spousal maintenance, he is wrong. Of course, he can voluntarily quit his job but the court ordered award will not be modified.
My former wife has her boyfriend living with her. She denies that he lives at her house.
You can investigate and try and get evidence. Does he still have his own residence? How often does he spend the night? Does he have kids or a dog that also lives with them? Did he change his address on his driver’s license or with the post office? An attorney can help you investigate these circumstances that might include a deposition of your former wife and her boyfriend. We won a case like this because he parked his car every night at her house and had his dog live there with his own new dog door.
My father passed away and was paying my step mother. She sent the family a letter and expects us to pay off the balance.
She is incorrect unless there is some document that requires it. You might want to ask your probate attorney or consult with a family law attorney.
My former wife is paid spousal maintenance by me. She overspent after the divorce and she has now asked for a modification to pay off her debt.
This is doubtful that she will be successful. This debt was of her own doing unless it is something out of her control, such as medical bills. This is all discretionary with the court if she can properly plead these facts in her petition.
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