Modification and Duration of Maintenance Obligation (part 1)

Some of my clients would have skipped the preceding material and proceeded directly to this topic. This interest, I think, reflects the anxiety associated with uncertainty, particularly protracted uncertainty.

As a guy goes through the divorce process he often feels an almost unshakable sense of impending doom, doubtless born largely of horror stories told him by "friends" and others. However, unless you think my discussion to this point warrants such an expectation, you have hopefully concluded that this ordeal, while by its nature hurtful financially and otherwise, is nonetheless surmountable in all these respects.

When the gavel goes down and the property and debts are allocated, whatever the result, most guys feel a sense of closure. The worst, be it good as bad, is over and the rebuilding can commence.

This is true even where maintenance has been awarded so long as the amount and its duration are fixed. (Child support will be discussed in a subsequent chapter). Even if excessive, a man can plan with an eye turned reassuringly to a point certain in the (hopefully near) future.

But often a maintenance order does not permit this horizon. The whole question of duration regarding a maintenance order, as with other aspects of this topic, can be frustratingly murky.

Let me first point out that since the women's rights campaigns of the late 60's and early 70's, maintenance is considered by most states to be "rehabilitative". This means that for women it is no longer a lifetime pension as it was in more sexist days. Now the presumption is that people, both male and female, are to be self-supporting as fully and as promptly as possible after (or even during) divorce. Therefore, once maintenance is ordered (unless for a fixed term which I will discuss momentarily), the court must reduce or terminate the maintenance if it subsequently concludes the wife's need for support has, or should have, diminished. Such modification or termination may occur at any time or at no time.

Maintenance can be ordered in basically one of two ways. It can be included in a settlement agreement entered into by the parties which the court then incorporated in its Order, or it can be simply ordered by the court after each side has presented its evidence at a trial.

In the former scenario, the parties can choose to make the maintenance "non- modifiable" and for a fixed term (e.g. 3 years). The strategic considerations underlying such a deal will be discussed in Chapter .

In the latter scenario, where the court imposes the maintenance, it must be modifiable (both upward and downward) and typically be for an indefinite period of time. The rationale underlying the "indefiniteness" tendency is that the court, once it concludes maintenance is appropriate, cannot capriciously or arbitrarily declare when it will be inappropriate. Courts of Appeal and/or legislatures will not permit the court to simply speculate about the recipient's, or for that matter the payor's, future.