It depends often on the circumstances that the parties are in. The analysis depends on which side the lawyer represents. The advantages to a non-modifiable award are that no matter what happens to the other side, that maintenance is going to continue absent one of the statutory terminating factors. The maintenance would end, generally speaking, upon the death of the person who is paying it, upon the death of the person who’s receiving it, upon the re-marriage of the person receiving it, or continuing cohabitation on a conjugal basis by the person who’s receiving it. Any one of those four events terminates the payment of maintenance.
The modification, if it’s non-modifiable, means that the maintenance will continue on of the amount that’s originally ordered and not be subject to either increase, if the person who’s receiving it has something befall them that increases their needs, nor is it subject to a decrease, if the person who’s paying it finds themselves in a position where they have reduced income or assets or ability to pay. So, it provides stability, but with such stability comes some risk. The risk particularly sets forth the potential problems that can happen on the side of the party who’s paying it.
Modifiable means that in a substantial change in circumstances, if the income of the person who’s paying goes up significantly, the party who’s receiving maintenance can file a petition and go in and ask the court for an increased level of maintenance. If there are circumstances where the ability to pay has been reduced, and that’s beyond the control of the person who’s paying, then that side can go in and ask for a reduction.
There’s stability and risk that comes with a non-modifiable, and on the modifiable side, it offers some protection but also the risk of the payments being increased in the future depending on what happens with the side who’s paying.
Chuck Roberts is a family lawyer at Momkus McCluskey Roberts, LLC, one of the largest law firms in DuPage County, Illinois.