Someone may choose to quit a good job because their spouse got a promotion in a new city. A couple may decide one of them should stay home to raise the children. Someone else may forego pursuing a degree to support their spouse as they earn theirs. These are all choices that make sense as long as the couple stays together.
Then comes the divorce. And suddenly, one spouse is faced with a reality they had not prepared for—providing for themselves on their own. It can be challenging to transition back to the workforce and in some cases, it may not even be possible. That’s where spousal maintenance may come in.
On the other side of the equation, being forced to pay spousal maintenance can feel like a one-two punch. Not only are they getting divorced, but now they must pay their spouse, even though their spouse is already getting a lot of the benefits and financial assets based on the overall division of property. It can feel unfair, and they think a long-term award of spousal maintenance—or any award for that matter—is too much.
The law permits spousal maintenance (or alimony as it’s called in other states) for several reasons—to help maintain the lifestyle the parties enjoyed during the marriage, to reward one spouse for the role they played in the other spouse fulfilling career ambitions, but the reason that is most likely to be reflected in a spousal maintenance order is to transition the receiving spouse to becoming self-sufficient.
Arizona law attempts to balance these interests. The state legislature has built numerous considerations into the spousal maintenance laws, and it makes for a very complex, gray area of the law.
Other than child custody, spousal maintenance is the most-litigated issue in a divorce. Spousal maintenance is also not automatic, and it is an extremely complex issue. Unlike child support, there is no formula to support an award of spousal maintenance. So, if spousal maintenance is on the table and you are fighting for or against it, you want your argument to be very, very clear. If you think your divorce is one in which spousal maintenance may be an issue, we urge you to consult with an attorney.
For spousal maintenance to be an issue, one of the spouses needs to request it in either the Petition or the Response to the Petition. If neither party requests it in one of those documents, it cannot be ordered.
The Affidavit of Financial Information (AFI) is a document that both parties need to fill out when spousal maintenance is at issue. It becomes a critical document in a spousal maintenance case where the focus is often on what the receiving spouse to needs to meet their reasonable needs and whether the other spouse can afford to pay spousal maintenance and meet their reasonable needs.
The other components of spousal maintenance include what the potential receiving spouse will be receiving in property from the divorce, what their earning capacity is in the market, whether they’ve reduced their opportunities for the benefit of the other spouse. On the other side, the Court will be interested in whether the potential paying spouse can afford to pay spousal maintenance. Discovery and disclosure help the parties get the information they need to make a risk assessment and determine whether they want to settle or go to trial.
In situations where a spouse has not worked for a while or has just started working, there is often a debate over what that spouse’s earning potential might be, which is a very critical question in spousal maintenance. A vocational evaluation is a meeting with an expert who is trained in determining what someone’s earning capacity is in the market. It is commonly ordered in these situations.
Because spousal maintenance is such a gray area, both sides bear substantial risk should a spousal maintenance case go to trial. For that reason, it is often advisable to try mediation once all the relevant information has been exchanged. The purpose of mediation is to see if the parties can reach an agreement that works for both. Additionally, the parties can agree to make spousal maintenance non-modifiable; the Court on its own cannot order that.
If the parties cannot reach an agreement on spousal maintenance, the court must decide. The court can only decide after a trial.
The law regarding spousal maintenance is A.R.S. § 25-319. It has two parts for determining maintenance. Under A.R.S. § 25-319(A), a spouse must meet one of the five listed criteria to qualify for spousal maintenance. Once they do, we move onto A.R.S. § 25-319(B) to determine the amount. There are currently thirteen (13) factors the Court considers in determining the amount and duration of spousal maintenance. You will note there is no formula, and the factors really don’t have much to do with actual picking an amount or duration. That is why it is such a gray area because you can get one number from one judge, and go next door to the next judge, and with the same facts, get a vastly different number.
You might. Certainly, you will have an argument that your spouse has enough property to be self-sufficient such that spousal maintenance should not be ordered or should be reduced. But the Court will also look at whether spousal maintenance is necessary to help the receiving spouse maintain the lifestyle established during the marriage.
No. Spousal maintenance is not necessary when the parties earn the same amount. A spousal maintenance award should not make it so the paying spouse has less income than the recipient spouse.
No. Since you are both getting an equal share of all the retirement assets, each of you will have the same income, so there is no need for spousal maintenance.
No. Spousal maintenance is not intended to equalize incomes. The purpose of spousal maintenance is to help the receiving spouse meet their reasonable needs and to help them transition to independence.
No. There is no minimum length of marriage requirement in the law. Obviously, though, the shorter the marriage, the less likely spousal maintenance is to be ordered. You should be aware that certain other benefits that you may be entitled may require a minimum length of marriage. This is particularly true if you want to draw on your spouse’s Social Security (a 10-year marriage). If your spouse is in the military and will qualify for military retirement pay not related to a disability, there may be benefits available to you depending on the length of the marriage.
Infidelity is not something the Court considers when awarding spousal maintenance.
No. Adultery does not enter into the spousal maintenance calculation on either side of the ledger.
Spousal maintenance is not that simple. Much more information must be considered to determine whether spousal maintenance is going to be ordered. This is where a consult with an attorney is helpful.
Yes, that is the kind of transition for which spousal maintenance was intended. But be aware that does not necessarily mean you qualify for spousal maintenance or be awarded it.
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