Wonder if your spousal maintenance is modifiable? This question was addressed in Scarp v. Rahman when the father in the case of sought to modify his maintenance obligation. The trial court would not allow the modification so he sought an appeal. The appellate court affirmed the trial court’s decision and said that because their judgment said maintenance was non-modifiable, he was precluded from changing the marital settlement agreement to seek a reduction or termination of the maintenance.
The Parties Agreed to Non-Modifiable Terms
Pursuant to their agreement, Jeffrey Rahman was required to pay child support for their three children and to pay his ex-wife maintenance in the sum of $2,550.00 per month. Maintenance was to be paid for 163 months or until Stefanie’s remarriage, her cohabitation, or the death of either party. The parties agreed for the sake of their agreement that Jeffrey’s gross income was $150,000 and Stefanie’s was $55,000 for Stefanie. The pertinent part of their agreement was paragraph 14.11 and paragraph 14.17, which stated:
“14.11 Except for the terms herein concerning the support, custody or visitation of the minor children, this Agreement shall not be changed, modified or altered by any order of Court after this Agreement has been incorporated into a Judgment for Dissolution of Marriage, or after it has become effective by the entry of any Judgment for Dissolution of Marriage, except by mutual consent of the parties.”
“14.17 parties may only amend or modify the MSA by a written agreement dated and signed by them and that no oral agreement shall be effective to do so.
After the parties signed their Marital Settlement Agreement (“MSA”) the law changed and the law now included language that stated that maintenance provisions had to have a specific statement stating that maintenance was non-modifiable if the parties were agreeing to non-modifiability. Jeffrey and Stefanie’s agreement didn’t have that specific line in the maintenance section of their agreement, just the general term which addressed non-modifiability regarding the entire agreement. Because the maintenance paragraph did not say it was “non-modifiable” Jeffrey argues then it is therefore modifiable. Jeffrey’s argument, in this case, is whether the generic phrase in his agreement controls or the current law surrounding non-modifiability in maintenance provisions controls.
Father Files His Motion To Modify Maintenance
Jeffrey filed his petition that sought an order terminating his maintenance payments to Stefanie. Jeffrey claimed that he had only made $110,000 while Stefanie had earned $164,124.00 and that was a substantial change warranting a modification of his maintenance obligation. Although the court couldn’t disagree with the money each of the parties made, the court still went back to the agreement and found that the parties had agreed to make it non-modifiable. Therefore, Jeffrey’s petition failed and he was still required to pay the agreed-upon maintenance amount.
Typically Maintenance is Modifiable
Maintenance is typically modifiable when one of the parties can show that there has been a substantial change in circumstance warranting the modification since the last order was entered.
The issue in this case, is whether the parties’ agreement with the language, “this Agreement shall not be changed, modified or altered by any order of court” is sufficient to make maintenance nonmodifiable or whether they were required by statute to expressly state an agreement on the topic of maintenance in order to make it nonmodifiable. The statute in effect at the time stated that:
“Child support, support of children as provided in Sections 513 and 513.5 after the children attain majority, and parental responsibility allocation of children may be modified upon a showing of a substantial change in circumstances. The parties may provide that maintenance is non-modifiable in amount, duration, or both. If the parties do not provide that maintenance is non-modifiable in amount, duration, or both, then those terms are modifiable upon a substantial change of circumstances. 750 ILCS 5/502(f) (West 2016).
Husband Argues His Agreement Does Not Preclude a Modification
Jeffrey argues that the language in their agreement, “this Agreement shall not be changed, modified or altered by any order of Court” does not mean he cannot modify his maintenance obligation, particularly when there is a “substantial change in circumstance.” Jeffrey argued that in order for maintenance to be non-modifiable, there had to be language in the maintenance section that stated it was non-modifiable. The parties’ Marital Settlement Agreement did not expressly say that maintenance was non-modifiable, and Jeffrey argues that this language must be present in order to keep him from modifying. The court, however, looked at the general phrase in their agreement, section 14.11 that, “except for terms concerning support, custody, or visitation of the minor children, “this Agreement shall not be changed, modified or altered by any order of Court.” Absent this paragraph, Jeffrey may have been able to modify, but according to the court, they expressly agreed not to modify the agreement
Husband Argues Their Agreement Was Ambiguous
Finally, Jeffrey argues that the trial could have determined that the agreement was ambiguous and taken evidence as to the parties’ intent. The court disagreed that the agreement was ambiguous, however, and without that finding, there is no reason to take evidence as to the parties’ intent. The court found that section 14.11 included a clear and unambiguous agreement indicating a contractual intent to make maintenance nonmodifiable in its entirety.
The appellate court reviewed the statute that was the law when the parties agreement was made and then the current statute. The court concluded that the legislative intent of amended section 502(f) is not to require that a Marital Settlement Agreement (MSA) include a statement specifically mentioning the topic of maintenance for it to be non-modifiable. Rather, the court interpreted section 502(f) as continuing to permit parties to an MSA to employ a catchall provision to the effect that the entire MSA is nonmodifiable (except for terms concerning matters that may never be made nonmodifiable), and where parties employ such a catchall provision, this encompasses an agreement that maintenance is nonmodifiable in its entirety. In other words, these types of “catchall agreements” have been interpreted as sufficient to make maintenance nonmodifiable. The court saw nothing to change that.
THE LANGUAGE USED BY THE PARTIES IN THEIR MSA IS SUFFICIENT TO INDICATE A CLEAR AND UNAMBIGUOUS AGREEMENT THAT MAINTENANCE IS NONMODIFIABLE
Accordingly, the court concluded that the language used by the parties in their MSA is sufficient to indicate a clear and unambiguous agreement that maintenance is nonmodifiable and that the parties were not required under section 502(f) of the Act to state an agreement specifically on the topic of maintenance in order to make it nonmodifiable. The appellate court ruled that the trial court did not err in its interpretation of the parties’ MSA.
Proper Drafting of the Agreement is Essential
It is hard to see into the future and some of the paragraphs in a person’s Marital Settlement Agreement aren’t known until a problem arises. If you are looking for a non-modifiable agreement, then your document should clearly say that. This is where an experienced Chicago divorce attorney plays a vital role. In this case, the parties could have easily agreed that the agreement would not be modified so long as each of them were making the same amount of money that they were at the time of judgment, or it would be modified if the amount made was within 10% or more of the monies made at the time of judgment. There are many variations of the Marital Settlement Agreement and nearly anything can be agreed upon, it is important to look into the future and see which provision makes the most sense for your individual needs.
