(dissenting).
I do not think the court can divest itself of jurisdiction that it has. Courts do not self-destruct. Justice Coyne’s dissent elaborates on this point. For me, the question is whether the parties can agree, between themselves, to waive their right to have the court modify agreed-upon maintenance.1 Here not only did Frima expressly waive further maintenance, but she did so with the advice of counsel and the approval of the court. She now wants to go back on her word.
Our attitude on maintenance stipulations has been ambivalent. We have said a stipulation “is entitled to considerable eviden-tiary weight”; at the same time we have said it is “purely advisory” and does not deprive the court from ignoring it if a future change of circumstances warrants. Mark v. Mark, 248 Minn. 446, 450, 80 N.W. 2d 621, 624 (1957). Really, this is the same as saying the stipulation is meaningless. If the waiver only carries weight when there is no subsequent change in circumstances, it is not needed.
In this case it is unclear if the trial court gave any evidentiary weight to the spouse’s waiver of further maintenance. The court appears to have treated this case like any other application for modification of maintenance, looking only to see if circumstances had changed subsequent to the stipulation. Having found that circumstances had changed, that the husband was earning even more money while the wife was earning much less, the court proceeded to modify maintenance upwards.
It seems to me we need a better approach to stipulations on maintenance.2 Because of the unique institutional nature of marriage, these stipulations are not to be treated as ordinary contracts; they are not to be evaluated with a marketplace mentality. On the other hand, neither are maintenance stipulations to be ignored. Marriage partners who separate need to make agreements with some measure of finality so they can prudently plan their futures and get on with their lives.
The initial inquiry, it seems to me, is to determine if the maintenance waiver is to be binding.3 How the fortunes of the parties fluctuated after the stipulation was made should not be relevant to this inquiry. The test is the conscionability of the waiver judged as of the time it was made, i.e., was it then reasonable and fair? The burden of proof is on the party seeking to evade the waiver. The test is to be conducted within the institutional context of the marriage relationship. Among the factors to be con*509sidered are: To what extent the waiver was part of an interdependent package settlement, whether, for example, the waiver was a trade-off for other assets; to what extent the marriage had been a long-term, traditional marriage; each spouse’s degree of economic independence; also, to what extent the parties took into account the unforeseen future with its uncertainties of health and job security; and whether each party was represented by counsel.
The policy of the law should be to promote marriage and the family by protecting the commitments inherent in marriage. While relationships outside marriage are perhaps becoming more common, marriage is still very much the norm because it denotes a particular kind of commitment, including a sense of permanence and a sense of responsibility by each spouse for the other’s welfare. Implicit in the marriage commitment has been an understanding that if the money-making opportunities of one spouse are greater than for the other, the economically disadvantaged spouse, in the event of a marriage break-up, may expect some financial support; the maintenance may be permanent, temporary or rehabilitative, or none at all, depending on the particular circumstances. The longer the marriage, the more bread-winning and home-making duties are divided, the more likelihood the need for maintenance by the economically disadvantaged spouse outweighs contractual provisions curtailing that need. This has been the law’s policy over the years.
On the other hand, some marriages are quite short. Or, as is becoming more common, there may be a marriage where both spouses have careers outside the home and both have a roughly equivalent measure of individual economic independence. In such cases there is more justification for enforcing the maintenance waiver.
I am not interested in cataloguing a list of factors to weigh in determining the reasonableness of a maintenance waiver, nor in assigning weight to the various factors; nor are the factors here mentioned to be applied mechanically. The court sits as a court of equity. The guiding principle, however, is to judge the validity of the waiver as of the time it was given, not by subsequent changes of circumstances that, though unforeseen at the time of the waiver, were nevertheless assumed in the bargaining process as risks inherent in life.
It can be argued that by approving the settlement stipulation and incorporating its terms into the divorce decree, the trial court found that the maintenance waiver was reasonable and fair at the time it was made. Most stipulated divorce actions, however, are proved up as default matters, the court assuming, especially if both spouses are represented by counsel, that the stipulation is appropriate. The court may not be aware of abuses of trust and confidence that may exist despite representation of counsel. While the court reviews what appears to be the reasonableness of the overall settlement stipulation, ordinarily it cannot be expected to make an in-depth inquiry into the specific reasonableness of a waiver of maintenance.
I would reverse and remand for findings on whether or not the waiver is enforceable. While I dislike prolonging this case, it appears that there will be further litigation in any event. See footnote 3. If the waiver is found to be nonbinding, there is no need to retry the second-step issue, namely, whether there has been a substantial change in circumstances. Frima would be entitled to the maintenance increase already ordered and not now disputed.
. The court, of course, does not activate its jurisdiction sua sponte; it must be invoked by a party. Thus, Minn.Stat. § 518.64, subd. 1 (1986), says, "[T]he court may from time to time, on petition of either of the parties, * * * modify the order respecting * * * maintenance * * *.” (Emphasis added.)
. Only stipulations on maintenance are involved here. Stipulations on child support and property distribution involve quite different policy considerations on which there is already a body of case and statutory law.
.We assume the stipulation for waiving maintenance was not the product of fraud, undue influence, or duress. A stipulation may be timely attacked for these reasons. See, e.g., Ronnkvist v. Ronnkvist, 331 N.W.2d 764 (Minn.1983). In this case, the wife now claims on appeal that the husband had fraudulently concealed assets at the time of settlement negotiations. This claim was not presented to the trial court and, therefore, is not before us.