Is Maintenance Subject to Modification?

There has been an argument going on in my area, between attorneys and judges, as to the issue of whether maintenance may be modified if there is no provision in the decree to do so.  Recently, in a Kansas Court of Appeals case, In re Marriage of Curry, 101 P.3d 740, this question was answered.  The court in the case provided its interpretation of K.S.A. 2003 Supp. 60-1610(b)(2).  The statue in question provides in part, "[t]he decree may make the future payments modifiable or terminable under circumstances prescribed in the decree."  The Court went on to say that "this tells us that the court may choose to include conditions for modifying maintenance in the decree itself or may choose not to.  Choosing not to, however, does not divest the court of jurisdiction to modify maitenance under the appropriate circumstances."  Parties to a divorce may move to modify or terminate maintenance awards based on a change in circumstances, regardless fof whether the conditions for terminating are spelled out in the decree.  One of those changes of circumstances would be the remarriage of the receiving party. 

Now I must add, this is not what the Kansas Law and Practice: Kansas Family Law handbook says. The handbook states that if there is an agreement and that agreement does not state the payments terminate on remarriage, then the payments continue and the court cannot alter the parties' contract and terminate payments. 

So which is it?  If there is no agreement between the parties, can the court than modify maintenance if there is a change in circumstances.  The answer is yes.  If there is an agreement, and the agreement does not state the payments terminate on remarriage, can the court modify?  The answer would appear to be no. 

Oh my!!!  What is a person to do.  Make sure if there is an agreement that it contain a provision which gives the court continued jurisdiction to modify the payment of maintenance or that maintenance automatically stops upon some event happening, i.e. remarriage of the payee.

However, I do plan to make the argument soon based on Curry that even if there is an agreement, which does not spell out continued jurisdiction, that maintenance should be modified if there is a change in circumstances.  I will let you know what happens.

Comments

[Teressa Huff]

What is the update of this case currently?