Spousal maintenance and termination under ARS 25-327B

by Annette Burns on November 16, 2007

Decree language which states that non-modifiable spousal maintenance will end upon the recipient’s death, but which is silent about the recipient’s remarriage, is not sufficiently "express" to mean that maintenance continues after remarriage, under ARS 25-327B.

In this recent case, the trial court ruled that the Decree language “Said term and amount of spousal maintenance is non-modifiable until October 31, 2008, except such shall end on the death of [Wife]” means that the spousal maintenance did NOT end upon Wife’s remarriage, which occurred in 2005 during the maintenance term.    Husband appealed from this finding.

ARS 25-327B provides that “Unless 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.”  (Emphasis added)

Wife argued that because the Decree mentioned termination only upon her death, but not upon her remarriage, that this was was an express provision (as required by ARS 25-327B)meaning that maintenance would not terminate upon her remarriage.

The Court of Appeals held that the language of the decree was not sufficiently express to meet the statutory requirement, and that at least “one level of inference” would be required to find that the decree language was intended to change the statutory presumption of termination upon remarriage.   Because inference was required to reach that conclusion, the decree language did not “expressly” provide that maintenance would continue after her remarriage.

“. .. [W]hen former spouses seek to avoid the application of §25-327(B), they must make their intention unmistakably clear,” citing Diefenbach v. Holmberg (2001).  Because the decree did not expressly provide that Husband’s spousal maintenance obligation shall not be terminated upon Wife’s remarriage, the obligation did terminate upon her remarriage.  Palmer v. Palmer, 1-CA-CIV-06-0674, 11-6-2007

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