When Is A Non-Modifiable Divorce Modifiable? When One of the Parties Lies

In Arizona, the parties to a divorce can agree that, in the future, a dissolution decree cannot be modified.  By statute, a court cannot alter a separation agreement that prohibits future modifications.  But there is an exception—when one of the parties lies or withholds information from the court.

Nancy S. McNeil petitioned husband Robert Hoskyns for dissolution of marriage in 2005, and he agreed to pay her $5000 monthly in temporary child and spousal support.  Because of a mistake involving automatic bank transfers, however, he began unwittingly paying her twice that amount. McNeil knew she was being overpaid, but never told her husband.

In 2007, at the trial for their marital dissolution, the parties agreed that Hoskyns would continue to pay $5000 per month for six years, an amount that could not be modified or terminated.  The court specifically asked the parties if there were any payments outstanding.  McNeil said he still owed $2500.  His wife said nothing about the fact that, because of duplicate payments, he had actually overpaid $85,000.  The overpayments continued, but McNeil still did not tell her husband or the court.

Two years later, McNeil filed a Petition to Enforce Spousal Maintenance claiming that her husband owed her $14,000.  At the time, she knew he had paid her far more than he owed.  A court-ordered accounting finally revealed the overpayment, and Hoskyns asked for relief.  His wife, however, then claimed he owed $49,000 in arrears.  She also threatened to try to have his dentist’s license revoked and filed a petition for contempt that resulted in her husband being briefly jailed.

After a series of hearings, the court decided that McNeil had committed fraud on the court on three occasions.  The court vacated all previous orders requiring Hoskyns to pay arrears, terminated his obligation to pay further support, and fined his ex-wife $5000 for “repeated fraud and misrepresentations.”  

She appealed the termination of support, claiming that, by statute, the court could not change a decree that was non-modifiable and non-terminable. The Arizona Court of Appeals upheld the lower court’s order, however, saying that the statute did not apply when there was fraud on the court. 

In divorce, it is common for the parties seek maximum advantage in spousal and child support arrangements.  That strategy can backfire, however, if one of the parties is less than honest with the court.  It can even lead to the modification or termination of payments.  If you are contemplating dissolution of marriage or if you have already divorced and are still in conflict with your ex, the experienced matrimonial law attorneys at Nirenstein Garnice can help you find a just solution to your problems. Based in Scottsdale, Arizona, we have years of experience handling all types of divorce and domestic relations issues, including spousal support and child custody disputes.  Contact us today at (480)351-4804 for a confidential consultation.