UNDERSTANDING ARIZONA’S SPOUSAL MAINTENANCE LAW
Use The Links Below To Jump Ahead
Section 1 – What is Spousal Maintenance?
Section 2 –The Affidavit of Financial Information
Section 3 –Temporary Spousal Maintenance
Section 4 –Maricopa County Spousal Maintenance Guidelines
Section 5 –Spousal Maintenance Enforcement
Section 6 –Taxes and Spousal Maintenance
Section 7 –Divorce Case Studies
Spousal maintenance, formerly known as alimony, refers to cash support paid by one spouse to the other. For a spouse who needs alimony to survive on a monthly basis, this could be the most important issue faced during the divorce. In the past, alimony could only be requested by a wife, to be paid by her husband. This is no longer the case. Now, either spouse may request spousal maintenance if they qualify under the statute.
For an order to constitute an award of maintenance, the specific language need not be included. Any monthly support payments that are not for the purpose of dividing property can be spousal maintenance. This is important because of the tax consequences associated with maintenance, which will be discussed below.
Spousal maintenance cases can be some of the most difficult to navigate. At Modern Law, we have secured indefinite spousal maintenance awards, interim or temporary spousal maintenance awards, and have successfully defended against and defeated unjust spousal maintenance claims. While the law offers parameters, a skilled lawyer is essential for navigating the treacherous waters of spousal maintenance.
YOUR INITIAL PLEADINGS
If you are entitled to spousal maintenance and fail to request it in your petition, you must go back and amend your petition in order to seek maintenance.
Many people call it “alimony” or “spousal support,” but A.R.S. § 25-319 refers to support of a spouse as “maintenance.” There are probably more misconceptions surrounding spousal maintenance than any other area of law. Here, it pays to know the law and to plead correctly in your initial documents.
Similarly, if you waive spousal maintenance in a divorce proceeding, you cannot go back and modify your divorce decree to seek spousal maintenance. You will definitely want to seek advice and counsel on these issues before proceeding. This article will discuss all the details of what you need to know regarding spousal maintenance in Arizona.
You have only one opportunity to get this issue correct. While you can always change a custody/parenting time decree to fit with the best interests of the child, you cannot go back and get spousal maintenance if it is not awarded in the divorce decree.
SECTION 2: THE AFFIDAVIT OF FINANCIAL INFORMATION
In a spousal maintenance case, you should take your Affidavit of Financial Information VERY seriously and walk through each item with your attorney. The ramifications of this document can be crucial in a spousal maintenance case. Also, it is important to be accurate. You and your spouse will turn over bank statements, credit card statements and other financial documents to the opposing party. If your documents do not match your Affidavit of Financial Information, it could have serious consequences.
The AFI document is required in EVERY case that involves any type of financial issue like child support and spousal maintenance. In this document, you are providing your gross monthly income from all sources, monthly expenses, and information regarding the children you support, as well as any other person or persons who reside in your household and are employed.
You will need documentation of your monthly finances, such as:
• Recent pay stubs and any other documentation showing other sources of income
• Information regarding your children
• Information regarding other people residing in your household
• Information regarding your current and past employers
• Your last 3 years’ income tax returns
• Information regarding self-employment if applicable
• A list of all of your monthly expenses
• Information regarding costs of medical/dental/vision insurance
• Information regarding costs of childcare if applicable
• List of debts with amounts owed and minimum payments required
You must do the best you can to provide accurate information for this document. Please be aware that you MUST provide this document to the opposing party in your case. It MUST have attached your last 2 pay stubs and the last 3 years’ income tax returns for all jobs you had during those tax years with W-2 and 1099 forms included. The first page of the document must be signed. This document must be filed with the court and a complete copy given to the judge assigned to your case.
SECTION 3: TEMPORARY SPOUSAL MAINTENANCE
A spouse can seek temporary spousal maintenance by filing a motion for temporary orders requesting maintenance. This motion must be accompanied by an affidavit laying out all the facts for why the maintenance is needed. The motion should address current living expenses, the lack of funds to pay the expenses through employment or savings, or the lack of access to community funds, and it should address the other spouse’s ability to pay temporary maintenance.
The motion should also include expenses associated with the divorce, like attorney’s fees or moving expenses.
The responding spouse will be served an order to appear for a temporary orders hearing. For more information on a temporary orders hearing, click here.
For both temporary orders and a permanent award of spousal maintenance, the analysis is the same. (However, different judges treat this differently. At least one Maricopa County judge splits the income in half on a temporary basis, pending the divorce trial.)
The statutory analysis is as follows:
First Step: Qualification
The spouse seeking maintenance must show he or she qualifies by documenting any one of the following:
• Property, including property received in the divorce, is insufficient to provide for his or her reasonable needs;
• the spouse is unable to be self-sufficient through appropriate work, or lacks enough earning ability in the labor market to be self-sufficient, or takes care of a child whose age or condition requires the spouse to not work outside the home;
• the spouse contributed to the educational or career opportunities of the other spouse; or
• the marriage was for long duration and the spouse is of an age that prevents them from employment adequate to be self-sufficient.
If you do not pass this step, or your spouse cannot qualify under one of these factors, the court does not get to step two. This initial analysis is arguably the most important analysis to your case.
A few things should be noted here regarding the first factor above: When considering the amount of property that one spouse will receive, we are not stating that that spouse must use up all of the property in order to meet the reasonable needs. Instead, the court is looking at the income the property can produce as a consideration for whether the spouse can provide for his or her reasonable needs. The court is actually required to consider the “income-earning potential” of the property awarded to the spouse.
When looking at the second factor (self-sufficiency through work), the court is not looking at speculative expectations of employment, but rather actual employment or the ability to become employed. For instance, if a person must seek licensure before they can begin working, then they are not currently able to be self-sufficient through appropriate employment. We would also look at the health of the spouse when considering whether he or she is able to be self-sufficient through employment. The court will also look at the efforts (or lack of efforts) the spouse has made to become employed while the divorce is pending. This can be particularly challenging, because the spouse is often going through a great deal of stress and transition during this time. This can make trying to find a new job or entering the workforce even harder than it would be otherwise. However, the judge will want to know what efforts you have made to become employed when considering whether or not you qualify for maintenance under this factor.
The third factor exists so that a spouse who has supported and contributed to the other spouse’s professional degree gets fairly compensated. This is because after the divorce, a degree in law, medicine, pharmacy, or other profession will be the separate property of the spouse who earned the degree.
The fourth factor is usually applied for marriage of a very long duration when spouses are around 50 years old or older. This is typically the scenario for any indefinite awards of maintenance.
Second Step: Analyzing the Factors
Once the court finds the spouse seeking maintenance has established one or more of the above qualifiers, the court must consider the following factors in order to decide how much spousal maintenance to award, and how long it should last.
The underlying purpose of spousal maintenance is for both parties to achieve independence and to require an effort toward independence for the spouse who is seeking maintenance. The court will look at whether or not a good faith effort is being made toward achieving independence. The court also prefers a fixed term of maintenance rather than a lifetime award of maintenance.
In its analysis the court will consider the following:
1. Standard of living established during the marriage. Here, the court will also look at whether the standard of living was consistent during the marriage and whether the standard of living was accumulated by acquiring debt. The court recognizes that each spouse cannot necessarily maintain the exact standard of living enjoyed during the marriage, but one spouse shouldn’t be required to consume property while the other maintains the former lifestyle through income.
2. Duration of the marriage. In general, under 10 years is a short marriage, 10-20 years is a medium length marriage, and over 20 years is a marriage of long duration.
3. Age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance. For this factor, it is the ability to earn and not actual earnings that matter. The facts of the case, including young children, may affect the earning ability of the spouse. Employment history is a factor used to determine earning ability. The court balances the effort and actual ability for the spouse seeking maintenance to become self-sufficient.
4. Ability of the spouse requested to pay, to meet his or her own needs while paying maintenance. This factor considers the separate assets and all available income of the paying spouse, balanced with that spouse’s actual expenses, including debt. One case held that an award of less than 25% was certainly within the payor spouse’s ability. Future earnings and earning capacity can also be considered, not just what a spouse is actually earning.
5. Comparative financial resources of the spouses, including their comparative earning abilities in the labor market. Awards anywhere between 16.5% of the disparity in income all the way up to 47% of the disparity of income have been upheld by the court of appeals.
6. Contribution of the spouse seeking maintenance to the earning ability of the other spouse.
7. Extent to which the maintenance-seeking spouse reduced his or her income or career opportunities for the benefit of the other spouse. When the issue of maintenance goes before the court, the court looks at the financial status of both spouses. What did one spouse give up while helping the other spouse develop a better career? How much did the working spouse gain because the other spouse did not work to his or her full ability but assisted and supported the working spouse in career advancement?
8. Ability of both parties after the dissolution to contribute to the future educational costs of their mutual children. For this factor, it is reasonable to consider the costs both parties have assumed for paying a child’s college tuition, books or living expenses. The case on point stated that the husband could be required to pay maintenance to the wife so that she could also contribute to the childrens’ college costs. His reduction in income due to spousal maintenance should be offset by a reduction in his expenses associated with college.
9. Financial resources of the party seeking maintenance, including marital property awarded in the divorce, and that spouse’s ability to meet his or her own needs independently. Here, considerations include whether or not liquid assets or income-producing assets would be awarded in the divorce. Also, if a spouse received a home or car, did it come with corresponding debt or are the assets paid off, thereby reducing the need for monthly income? The court should also look at the income that will be received from retirement assets, like IRA or pension income.
10. Time necessary to acquire sufficient education or training so that the maintenance-seeking spouse may find appropriate employment, and whether such education or training is readily available. The court will look at whether or not employment should be suggested for the spouse. If a spouse is 65 years old and has not worked during the marriage, then training or employment is probably unlikely. On the other hand, if the spouse seeking maintenance is looking to become a licensed nurse, the court will look at whether the training is available and the time it might take to get the education, license and employment. The court might also look at a person’s history in school. Have they historically done well in school or not?
11. Excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community, joint tenancy and other property held in common. Misrepresentation of income and/or hiding assets could result in a spouse paying more spousal maintenance than they otherwise would have.
As an example, we recently represented a party in a case involving a long-term marriage where one party owned a medical practice. The wife worked in the business and raised the parties’ four children. Upon filing for divorce, the doctor stopped working and went to Hawaii with a mistress for three months. The court found that he specifically under-performed in his duties to the medical practice, undervaluing the asset of the practice. The wife was awarded $3,000 per month spousal maintenance forever.
Spousal maintenance cannot be awarded simply due to waste/concealment if the spouse doesn’t qualify for maintenance under one of the first four factors.
12. Cost for the maintenance-seeking spouse to obtain health insurance. The reduction in the cost of health insurance for the spouse from whom maintenance is sought if he or she is able to convert family health insurance to employee health insurance after the marriage is dissolved. We all know that the cost of health coverage has skyrocketed in recent years. This factor specifically allows the court to consider the future expense associated with health coverage for a spouse who will be losing their coverage from their spouse. The spouse seeking maintenance should research this and present the evidence to the court.
13. All actual damages and judgments from conduct that results in criminal conviction of either spouse in which the other spouse or child was the victim. If your spouse was abusive, this is the only place in family court where civil-type damages may be awarded. You may have an additional claim for civil damages. Click here to learn more.
You have the right to request “findings of fact.” If you make such a request, the court will be required to apply your facts to each and every factor laid out above. If findings of fact are not requested, a judge need not discuss every factor in the ruling and can simply discuss the factors they find applicable.
WHAT CONSTITUTES INCOME
To determine your income and the opposing party’s income for the child support calculator, you should include income from all sources, including:
• Income from salaries
• Severance pay
• Trust income
• Workers’ Compensation benefits
• Capital gains
• Spousal maintenance
• Unemployment insurance benefits
• Disability insurance benefits, including Social Security Disability benefits.
WHAT ISN’T INCOME
Veterans Disability benefits CANNOT be considered income for the purposes of paying spousal maintenance.
Factor 11, listed above, requires the court to determine excessive spending, concealing property, or fraud. However, the court will NOT consider “marital misconduct,” such as extramarital affairs. Any marital misconduct to be considered by the court in a spousal maintenance award must be financially based.
Community waste is a claim during divorce that your spouse wasted community funds and needs to pay you back for spending money on items, people, or services that did not benefit you or your marriage.
For instance, if your husband regularly used a prostitute and paid for these “services” with community funds, you may have a claim for community waste. If you prove your husband “wasted” community funds, you are entitled to be reimbursed for half of the expenditures.
If your wife had a gambling problem that you were unaware of, or you did not know the extent of the gambling problem, you may have a claim for community waste. The issue is concealment. If you knew about the gambling, or participated with her, then it will be considered a “recreational cost” and not community waste.
If your spouse had an affair, and purchased gifts or spent money traveling with his or her lover, you definitely have a claim for waste. You will need to show exactly how much was spent on the affair to establish your claim.
If, during the course of your divorce, you find massive amounts of ATM withdrawals, and spending patterns show that all normal expenditures (gas, food, haircuts, etc.), were made with a debit or credit card, then you have may have a claim for waste.
Waste may have an impact on your spousal maintenance claim or defense.
SECTION 4: MARICOPA COUNTY SPOUSAL MAINTENANCE GUIDELINES
Unlike with the issue of child support, there is no financial calculator used to determine spousal maintenance or even a range of what spousal maintenance might be. Also, even when facing the exact same facts, six different judges could end up awarding six different rulings on spousal maintenance. Some may not even agree on whether it should be awarded at all. You will need an experienced attorney who knows the judges. More than with any other issue, it may be a good idea to change judges depending on the trends of the judge and your particular position on the issue.
With that being said, the Maricopa County judges came up with a mathematical formula as guidelines to be used AFTER the threshold determination of eligibility has been made. The guidelines are designed to be a point of discussion and not a presumption.
The guidelines are based in part on the following assumed facts:
• That each party’s expenses exceed their income;
• The spouse seeking maintenance or child support is not working or works at a wage level that makes it impossible to make a substantial contribution toward the support of the child or children; and
• The payment of support and maintenance comes before all other obligations.
The guidelines are for marriages longer than 5 years and consider only two factors.
1. The duration of the marriage (rounded to the nearest whole number)
2. The incomes of the spouses at the time of dissolution (rounded to the nearest dollar)
To determine the amount of maintenance, we take the paying spouse’s income and subtract the receiving spouse’s income to get to the amount of spousal maintenance.
To determine the duration the maintenance will last, we take the number of years the parties were married and multiply by .015 – .5.
An indefinite maintenance award is appropriate if the marriage was longer than 20 years and the receiving spouse is over 50 years old.
EXAMPLES OF THE GUIDELINES
Herb and Wendy have been married for 20 years. Herb works as an attorney and earns $100k per year. Wendy works part-time for the school district and earns $20k per year. Herb is 42 and Wendy is 40.
Step 1. To determine the duration we take 20 x .15, or .30.
Step 2. Then we take Herb’s monthly income and subtract Wendy’s. $8333 – $1666 = $6666 (this represents the difference between Herb and Wendy’s monthly income).
Step 3. We then take $6666 and multiply it by .30 = $1999.80 monthly spousal maintenance.
Step 4. To determine how long Herb will pay Wendy $1999, we take the 20-year marriage and multiply it by anywhere between .3 – .5 – meaning the duration should be between 6 and 10 years of maintenance.
Harry and Wanda both work for Walmart. Harry works as a full-time cashier and Wanda works part-time in the salon. They have been married for 30 years and are both in their 60s. Harry earns $3500 per month and Wanda earns $1250.
Right away, we know that the duration of support will be indefinite, because the length of marriage is over 20 years and the parties are over the age of 50.
Step 1. .015 x 30 = .45 (this is our multiplier)
Step 2. $3500 – $1250 = $2250
Step 3. $2250 x .45 = $1013
Step 4. Indefinite award.
SPOUSAL MAINTENANCE MODIFICATIONS
Spousal maintenance awards are modifiable unless the order specifically states that the award is non-modifiable or the parties agree that the maintenance is not modifiable. (However, a court cannot modify spousal maintenance unless an original order contained an award of spousal maintenance.)
A spouse seeking a modification must prove a “substantial and continuing change of circumstances affecting the purposes of the original decree” that requires the amount or duration of spousal maintenance to be modified.
For instance, if the doctor ordered to pay spousal maintenance indefinitely (the one who hid assets and under-performed in his business) wants to terminate spousal maintenance payments, the burden will be on him to show the change in circumstances that is so substantial that it will allow for the modification.
By contrast, if the wife has been awarded five years of maintenance in order to get her nursing degree, licensure and find employment, she will have the burden of proving a substantial change sufficient to warrant extending the maintenance. An injury, for instance, making it impossible for her to become a nurse, may be a sufficient change to extend the maintenance payments. This type of spousal maintenance award is called “rehabilitative,” because it seeks to allow a spouse to become self-sufficient. Case law states it would be proper to modify an award if the circumstances contemplated during the original order are not actually fulfilled. If a spouse exhibits “maximum good faith efforts” and still cannot become employed, the court can and has extended spousal maintenance durations.
Maintenance awards cannot be retroactively modified. This means that you must file to modify if a substantial change has occurred. The court cannot go back and change awards prior to the filing of the Petition to Modify.
Unless there is very specific language to the contrary, spousal maintenance ends upon the death of either party or the remarriage of the receiving spouse. However, the court of appeals ruled that cohabitation is not grounds for modifying spousal maintenance. That means even if your ex is now shacking up with a millionaire, that alone will not be grounds for modifying or terminating support. In one case, the court held that a wife’s relationship with a third person was irrelevant and non-discoverable in a modification of maintenance case. By the same token, a husband’s increase in income cannot justify a modification of maintenance. An ex-spouse cannot reasonably expect to reap the rewards of further accumulation of wealth after divorce.
Retirement may or may not be grounds for modification of an award. The question will be whether or not the retirement was contemplated at the time of the entry of the decree. In one case, a wife was awarded property in the divorce and the husband was ordered to pay the debts associated with the property. The court of appeals said the trial court judge could use the husband’s non-payment of the debt as a change in circumstances warranting a change in spousal maintenance.
SECTION 5: SPOUSAL MAINTENANCE ENFORCEMENT
Judgments for spousal maintenance are not the same as judgments for other debts. They are taken very seriously by the legislature and are non-dischargeable in bankruptcy. If a spouse isn’t paying court-ordered maintenance, you do have options.
For example, the court can place a lien on the property of the spouse who isn’t making the required maintenance payments. Other ways that maintenance can be enforced include: seizing the tax returns of a spouse who fails to pay maintenance, collecting through an income withholding order, or levying against a bank account. In one case, we were able to secure the funds of a personal injury claim to satisfy unpaid spousal maintenance.
The deadline to request a judgment for unpaid support is three years after the order has terminated. After you have secured your judgment, you need not renew it. The judgment will remain in full force and effect. In fact, failure to pay the judgment is a class 1 misdemeanor!
In order to create a lien you must:
1. record the judgment,
2. file the lien by DES, or
3. the court can assign a specific security interest for the support payments.
In the event that your ex owes you unpaid spousal maintenance, you can file a petition to enforce your decree. This may need to be filed in civil court depending on the decree, so check with an attorney prior to filing.
SECTION 6: TAXES AND SPOUSAL MAINTENANCE – THIS IS IMPORTANT!
Alimony—per the Internal Revenue Service (IRS)—is taxable to the recipient and deductible by the paying spouse. This means every dollar you pay in spousal maintenance is money for which you do not owe taxes! This could lower your tax bracket significantly and it means that each dollar you pay is actually costing you closer to 70 cents. When used strategically, alimony can benefit both spouses.
Even though Arizona calls alimony “spousal maintenance,” the IRS nevertheless treats it as alimony. It is an “above the line” deduction, which means it is an available deduction even if the paying spouse does not itemize deductions. The spouse receiving maintenance must give his or her Social Security number to the paying spouse, who must list the Social Security number on the tax return.
For tax purposes, there are seven conditions for a payment to be alimony (or separate maintenance):
(1) The payment must be in cash (not property or goods).
(2) The payment must be received by (or on behalf of) a spouse under a divorce or separation agreement.
(3) The payment must not be designated in the divorce or separation instrument as not includible in gross income or not allowable as a deduction.
(4) If legally separated by a decree of divorce or separate maintenance, the spouses must not be members of the same household at the time of payment.
(5) There is no liability to make any payment as substitute payment after the payee’s death and the instrument so states.
(6) The payment is not in whole or in part for child support under the terms of the divorce or separation agreement.
(7) The payment is not subject to recapture pursuant to I.R.C. § 71(f).
As you can see, spousal maintenance is a complex subject that is very difficult to navigate unless you have extensive knowledge in this area. If you are counting on spousal maintenance for part or all of your support after your marital dissolution—or if you are the spouse expected to pay maintenance to your ex—this is the most crucial time to seek the advice of a skilled, experienced attorney who is committed to fighting for your interests.
SECTION 7: DIVORCE CASE STUDIES
MacMillan v. Schwartz, 226 Ariz. 584, 250 P.3d 1213, 1219-1220 (Ct. App. Div. 1 2011) (trial court applied correct standard of living for purposes of determining whether former wife would have sufficient income to meet her reasonable expenses, which was not former wife’s standard of living established during marriage, but standard of living contemplated in parties’ property settlement agreement (PSA), which was incorporated into the divorce decree, in proceedings on former husband’s petition to downwardly modify his spousal support obligation; parties’ PSA implicitly included relevant standard of living for determining spousal maintenance).
Chopin v. Chopin, 224 Ariz. 425, 232 P.3d 99, 101 (Ct. App. Div. 1 2010) (generally, when spousal maintenance agreement is merged into decree of dissolution, agreement becomes part of decree; however, when spousal maintenance agreement is incorporated into decree, spousal maintenance agreement retains its independent contractual status and is governed by principles of contract law).
Patterson v. Patterson, 102 Ariz. 410, 432 P.2d 143 (1967); Ruskin v. Ruskin, 153 Ariz. 504, 738 P.2d 779 (App. 1987). The ability to pay spousal maintenance is to be determined by earning capacity rather than by the amount of voluntarily reduced income. Shaughnessy v. Shaughnessy, 164 Ariz. 449, 793 P.2d 1116 (App.1990), abrogated on other grounds by In re Marriage of Zale, 193 Ariz. 246, 972 P.2d 230 (1999).
A wife was entitled to an award of spousal maintenance because she was unable to be self-sufficient through appropriate employment, the marriage was of a long duration, and her age might preclude the possibility of gaining employment that would be adequate to allow her to be self-sufficient; wife’s therapist testified that wife’s post-traumatic stress disorder (PTSD) was a debilitating condition from which he did not expect wife to recover for three to five years, and rehabilitation counselor testified that, given wife’s age, work history, and medical condition, it was unlikely she would be able to return to work even if she recovered from her PTSD. Helland v. Helland, 236 Ariz. 197, 337 P.3d 562, 567 (Ct. App. Div. 1 2014), review denied, (May 26, 2015).
The trial court’s decision to award wife spousal maintenance in the amount of $5,000 per month for a period of seven years did not constitute an abuse of discretion; wife testified that her reasonable needs totaled approximately $8,500 per month, which, as established at trial, was consistent with the parties’ lifestyle during the marriage, a significant portion of the assets wife received in dissolution were held in retirement account she could not access without penalty, wife was 55 years old at time of trial and unable to work for the next three to five years while she recovered from post-traumatic stress disorder (PTSD), and husband’s monthly expenses were de minimus as a result of his incarceration while he received approximately $15,000 per month in disability benefits. Helland v. Helland, 236 Ariz. 197, 337 P.3d 562, 568 (Ct. App. Div. 1 2014), review denied, (May 26, 2015).
A.R.S. § 25-319(B); Britz v. Britz, 95 Ariz. 247, 389 P.2d 123 (1964). See In re Marriage of Hinkston, 133 Ariz. 592, 653 P.2d 49 (App. 1982) where a wife suffering from Huntington’s disease was awarded $275 per month. Also in Melcher v. Melcher, 137 Ariz. 210, 669 P.2d 987 (App. 1983) the wife was granted a new trial to present evidence of her slow recovery from surgery. On adequacy of the award see 1 A.L.R.3d 6 (1965), 27 A.L.R.4th 1038 (1984), and 28 A.L.R. 786 (1984).
Accord Dopadre v. Dopadre, 156 Ariz. 30, 749 P.2d 939 (App.1988) to the effect that the award or denial of spousal maintenance will not be overturned on appeal in the absence of a clear abuse of discretion. See Roden v. Roden, 190 Ariz. 407, 949 P.2d 67 (App.1997) (failure to award wife spousal maintenance did not constitute abuse of discretion).
Hayne v. Hayne, 9 Ariz.App. 99, 449 P.2d 633 (1969). But see, Leathers v. Leathers, 216 Ariz. 374, 166 P.3d 929 (Ct. App. Div. 1 2007) (award, as indefinite spousal maintenance, of one-half of the value of any Social Security old age benefits that husband received was neither an illegal attachment of his federal old age pension nor an illegal award of Social Security as community property, where trial court specifically awarded the “value of one half” rather than attaching husband’s Social Security itself in the order under the heading “Spousal Maintenance.” However, the trial court had to take into consideration that wife would likewise be drawing Social Security benefits in her own name and how that might affect the award of spousal maintenance, as to award wife the equivalent of one-half of husband’s Social Security pension in addition to her own old age benefits might be inequitable and put her in a better financial position than husband) citing Social Security Act, § 207(a), 42 U.S.C.A. § 407(a).
In re Marriage of Waldren, 171 P.3d at 1219. Compare McNeil v. Hoskyns, 236 Ariz. 173, 337 P.3d 46, 50 (Ct. App. Div. 1 2014) (statute, providing that entry of dissolution decree that provides that its maintenance terms shall not be modified prevents the court from exercising jurisdiction to modify decree and separation agreement regarding maintenance, does not divest superior court of jurisdiction to modify a decree imposing spousal support that parties have agreed may not be modified when decree is product of a fraud on court; in such a case, party’s fraud has damaged integrity of judicial process and is a wrong against institutions set up to protect and safeguard public).
A.R.S. § 25-319(B). In Smith v. Superior Court, __ Ariz. __, __ P.2d __ (App. 1987) it was held that the former wife’s relationship with a third person was not relevant and was not discoverable in a proceeding by the former husband to modify spousal maintenance.
Provision in divorce decree, stating that the term and amount of spousal maintenance was non-modifiable until a certain date except that such shall end upon death of wife, did not expressly state that spousal maintenance shall not be terminated upon remarriage of the wife. Therefore, the husband’s obligation to pay spousal maintenance terminated upon the wife’s remarriage by operation of law under the statute providing that, unless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated on death of either party or the remarriage of the party receiving maintenance. Even though the decree stated that husband’s maintenance obligation was non-modifiable, such language did not address the termination and did not satisfy the statutory requirement of an express statement.
A.R.S. § 25-327(B). Palmer v. Palmer, 217 Ariz. 67, 170 P.3d 676 (Ct. App. Div. 1 2007). An agreement incorporated into the decree for $400 per month for four years only, which did not negate termination by death or remarriage, was not a lump sum payment and was modifiable for changed circumstances. Fye v. Zigoures, 114 Ariz. 579, 562 P.2d 1077 (App. 1977); Fawkes v. Fawkes, 115 Ariz. 384, 565 P.2d 890 (App. 1977). Raley v. Wilber, 122 Ariz. 336, 594 P.2d 1032 (App. 1979). A Division One case decided by Division Two stated that payments of $1600 per month for 11 years, which by agreement were not subject to modification by either party, could not be changed by the husband’s altered economic circumstances. Dooley v. Dooley, 147 Ariz. 132, 708 P.2d 1323 (App. 1985).