An agreement that maintenance will terminate "only" upon death excludes application of statute for termination of maintenance upon remarriage. Simpson v. Simpson, No. 91498 (Mo. banc, October 4, 2011), Fischer, J.
The parties were divorced in 2005. They entered into an agreement by which the Husband would pay the Wife $12,000 per month in non-modifiable maintenance for 15 years. Said maintenance was to "terminate prior to the expiration of said 15 year period only in the event of the death of either party." In 2009, the Wife remarried. The Husband filed a motion to terminate maintenance on the basis of her remarriage. The Wife responded by filing a motion to dismiss his claim, which was granted. The Husband appealed, and the matter ended up in the Missouri Supreme Court to address the applicability of § 452.370.3, RSMo, that provides that maintenance terminates immediately upon Wife's remarriage unless otherwise agreed in writing or expressly provided in the judgment.
Held: Affirmed. "The problem with the Husband's argument is that he and Wife agreed in writing in the separation agreement that maintenance would terminate 'only in the event of the death of either party."
"[T]he use of the word 'only' in the separation agreement is sufficient to overcome the statutory presumption of § 452.370…"
Once again, settlement agreements must be scrupulously drafted in order to avoid unjust results. The laws of Kansas and Missouri are in harmony on this point: if a marital settlement agreement does not specify the statutory factors for modification or termination of spousal maintenance (formerly known as "alimony"), then the obligor may lose any right to modify the agreement based upon death, a material change in financial circumstances, or, as in this case, even re-marriage of the maintenance recipient.