concurring in result. -
I think the majority correctly affirms the trial court's decision that the order for maintenance entered by the court in this case at the request of the parties is not subject to revision except by their mutual consent. On the other hand, I think the grounds on which this holding rests wrongly decide an important subsidiary question: does Indiana law authorize or*379ders for maintenance that continue even after the obligor dies?
As it is with many uniform acts, Indiana was an early adopter of the Uniform Dissolution of Marriage Act.
This reform abandoned a good number of long-standing legal concepts. It eliminated the need to assign blame for the failure of a marriage, such that people frequently call it "no-fault divorcee." The act also put an end to the last vestige of the antique idea that the husband was the sole economic and legal unit, with the wife a mere appendage of little separate identity. Instead, it treated husband and wife as equal economic participants; it contemplated that they would divide their assets and go their separate ways after the "dissolution," as though they were terminating a corporation or a partnership. Consistent with this policy, the act abolished the very idea of alimony. Johnson v. Johnson, 174 Ind.App. 408, 410, 367 N.E.2d 1147, 1149 (1977).
Our legislature was fairly muscular on this last point. The uniform act featured a provision for maintenance when a spouse "lacks sufficient property to provide for his reasonable needs [and] is unable to support himself through appropriate employment." Unif. Marriage and Divorce Act § 308 (amended 1973), 9A U.L.A. 446 (1998). The Indiana Civil Code Study Commission tendered the act to our legislature with a similar provision.3 The General Assembly elected instead what the Court of Appeals later called a "more restrictive" provision authorizing maintenance when a spouse is "physically or mentally incapacitated." Pub.L. No. 297 § 9(c), 1973 Ind. Acts 1585, 1590.
Even during the days of alimony, the rule was that periodic alimony payments made to support a former spouse (as opposed to alimony provided in lieu of a share of property) terminated upon the death of the obligee. See, e.g., 1949 Ind. Acts ch. 120, s. 3, p. 313; White v. White, 167 Ind.App. 459, 338 N.E.2d 749 (1975). And from the earliest cases under the 1973 act to the most recent ones, the Court of Appeals has said unless the divorce decree clearly says otherwise, the maintenance ends when the obligor dies. See, e.g., Brown v. Guardianship of Brown, 775 N.E.2d 1164, 1167 (Ind.Ct.App.2002); Hicks v. Fielman, 421 N.E.2d 716, 722 (Ind.Ct.App.1981); White v. White, 167 Ind.App. 459, 471, 338 N.E.2d 749, 756 (1975).
If anything, the 1978 act retained the distinction between periodic post-divorce payments intended as division of property and those payments intended as ongoing support of an ex-spouse. It abolished the latter (except in cases of incapacity). It also abolished the former, except when the parties submit for court approval an agreement in writing to "provisions for the maintenance of either of them" under seetion 10 of the 1973 act. The Court of Appeals onee called this "putting a new hinge on an old door," a provision designed to let parties decide to take advantage of the federal income tax treatment of such payments. Hicks, 421 N.E.2d at 721.
In the face of these long-standing principles about termination of alimony and maintenance, and without overruling any of the multiple cases of this Court or the Court of Appeals on the point, the majority today holds that the Code gives Indiana *380judges power to order maintenance beyond the death of the obligor whether the parties agree to it or not. It does so on the basis of a single phrase: a court "may find that maintenance for the spouse is necessary during the period of incapacity." Ind.Code Ann. § 31-15-7-2(1) (West 1999) (emphasis added). It is hard to imagine that the General Assembly would choose to alter such a fundamental legal concept, one that 'has spanned several generations at least, with such subtlety. The majority cites nothing else but the five underlined words as support for its conclusion-not a report about national trends or any scholarly articles or even any judicial speculation to support its view that the legislature intended a substantial policy change by using these words. I think it much more likely that the General Assembly simply intended to recognize that certain impairments may last for quite a while but not last forever, like treatable illness for which there would be an extended period of recovery hopefully followed by good health.
Because I conclude that the legislature did not intend to authorize judges to order maintenance beyond the death of the obli-gor, I think the majority gets to the right result. The parties' agreement "for the maintenance of either of them," lasting even after the husband's death, submitted by them under section 10 and incorporated into the decree, can only be modified by their mutual assent. This rule reflects adherence to provisions in section 10(c), and it also represents good judicial policy. If it were the case that courts could modify such agreements after the decree is entered, how could the judge know with confidence what got traded for what during the course of the earlier negotiations? If one party is to be granted more of something, should that party be obliged to give up part of something else obtained in the course of achieving a settlement? Even if judges could redesign settlements after the fact, a legal system that sanctioned such redesigning would be one in which parties settled far less often than they do now.
RUCKER, J., joins.. - The court may grant maintenance "only if it finds (1) that the spouse seeking maintenance lacks sufficient income and property to provide for his reasonable financial needs and (2) that the spouse seeking support is unable to support himself through employment ..." Report of the Civil Code Study Commission, Proposed Dissolution of Marriage Act § 210 (1970).