Spousal Maintenance or Alimony?
The obligation for an individual to provide financial support to his or her former spouse during and/or after divorce or legal separation is referred to as spousal maintenance in Arizona. Other states may use the terms spousal support or alimony, but alimony often implies misconduct and Arizona family courts determine spousal maintenance without regard for marital misconduct. This means that a judge will not order spousal maintenance to punish one spouse for infidelity or even emotional neglect. The central aim of maintenance is to enable both spouses to achieve financial independence without state or government assistance, though Arizona law gives the family courts ample discretion to award spousal maintenance far more liberally.
No Mandatory Awards
This really cannot be overstated and functions as an important disclaimer. There are no certain entitlements to spousal maintenance. It is entirely left to the subjectivity of the judge assigned to the case and, in some cases, the quality of the divorce attorneys involved. No two cases are identical so litigants cannot depend on what happened in a different case to predict what will happen in their case. While we encourage everyone involved in or contemplating any family law litigation to take advantage of a free consultation, it may be especially beneficial when spousal maintenance is a potential issue.
Who Qualifies for Spousal Maintenance
Under A.R.S. § 25-319(A), there are five eligibility criteria. While previous iterations of this statute required a spouse to satisfy all of the criteria, this is no longer the case. Today, Arizona family courts can (but is never obligated to) award maintenance if any of the criteria are met.
A spouse may be eligible for spousal maintenance if he or she:
1. Lacks sufficient property, including property apportioned to the spouse, to provide for that spouse’s reasonable needs.
“Property apportioned to that spouse” refers to the share of community property awarded during the divorce or legal separation. While this sounds straightforward, it is more nuanced than the statute makes it seem. Not all property will affect the spousal maintenance analysis. For example, let’s say a spouse is entitled to a robust retirement account. Those funds may not factor into this statutory analysis because courts ordinarily will not require a spouse to liquidate or deplete a retirement account to pay his or her living expenses. Another common example involves real property, usually the spouse’s primary home, in which there is equity. The court might not order a spouse to sell the property so any equity remains unrealized.
2. Is unable to be self-sufficient through appropriate employment or is the custodian of a child whose age or condition is such that the custodian should not be required to seek employment outside the home or lacks earning ability in the labor market adequate to be self-sufficient.
This subsection requires the judge to define “self-sufficient,” determine if a spouse is able to achieve that threshold through employment, and determine if there are any children whose age and/or conditions justify unemployment or underemployment. All three of these determinations may be entirely subjective. The term “self-sufficient” can be generously defined based on the context of the case, so not only can this threshold vary from judge to judge, it actually may vary from case to case with the same judge.
There also is no bright line rule for when a child’s age or condition justifies a parent’s unemployment or underemployment. Examples of underemployment may include part time employment or maintaining a position that offers flexible hours but less compensation than the parent is capable of earning. Some courts answer this question with a simple cost-benefit analysis, i.e. whether the increased cost of child care necessary to enable full time employment would substantially outweigh its financial benefit. If the answer is yes, it may bolster a case for a spouse to receive maintenance until the child’s needs change.
3. Has made a significant financial or other contribution to the education, training, vocational skills, career or earning ability of the other spouse.
This eligibility criterion most commonly applies when one spouse supports the other while he or she obtains an advanced degree or other career training that ultimately enables higher earning capacity, conceptually similar to an “investment” in the other spouse. But it is not limited only to this scenario. It also could apply when a spouse’s contribution is intangible, like providing child care to enable the other spouse to work additional hours to achieve a promotion.
4. Had a marriage of long duration and is of an age that may preclude the possibility of gaining employment adequate to be self-sufficient.
Although this subsection is perhaps more straightforward than the others, it is frequently misapplied by judges and divorce attorneys. Its conjunction, the word “and,” is often ignored. By itself, a long marriage does not entitle a spouse to maintenance. The spouse also must be of an advanced age that could make it impossible to obtain employment sufficient to achieve financial independence.
As with almost everything else about about maintenance in Arizona, both of these requirements are subjective. There are no definitions for what constitutes a marriage of long duration or what age precludes adequate employment. The court’s discretionary opinion of duration also affects the computation and duration of a maintenance award, as discussed below. So even if a spouse does not request maintenance under this subsection, the duration of the marriage still may impact the outcome of the case.
5. Has significantly reduced that spouse’s income or career opportunities for the benefit of the other spouse.
This subsection was added very recently, so it is less developed throughout Arizona law. It is easy to imagine application in cases where one spouse terminates his or her employment or foregoes career advancement for the benefit of a family. The idea is that this type of sacrifice disadvantages a spouse based, at least in part, on the expectation that the marriage will continue.
How Spousal Maintenance is Calculated
Unlike child support, there is no spousal maintenance calculator used in Arizona. Spousal maintenance guidelines were prepared, but those never gained traction among family court judges.
The amount and duration of spousal maintenance awards are perhaps even more variable than eligibility determinations. This is because courts are required to consider “all relevant factors,” whatever that means, and the following 13(!) factors specified under 25-319(B) when deciding whether to award spousal maintenance:
- The standard of living established during the marriage.
- The duration of the marriage.
- The age, employment history, earning ability and physical and emotional condition of the spouse seeking maintenance.
- The ability of the spouse from whom maintenance is sought to meet that spouse’s needs while meeting those of the spouse seeking maintenance.
- The comparative financial resources of the spouses, including their comparative earning abilities in the labor market.
- The contribution of the spouse seeking maintenance to the earning ability of the other spouse.
- The extent to which the spouse seeking maintenance has reduced that spouse’s income or career opportunities for the benefit of the other spouse.
- The ability of both parties after the dissolution to contribute to the future educational costs of their mutual children.
- The financial resources of the party seeking maintenance, including marital property apportioned to that spouse, and that spouse’s ability to meet that spouse’s own needs independently.
- The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment and whether such education or training is readily available.
- Excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community, joint tenancy and other property held in common.
- The cost for the spouse who is seeking maintenance to obtain health insurance and the reduction in the cost of health insurance for the spouse from whom maintenance is sought if the spouse from whom maintenance is sought is able to convert family health insurance to employee health insurance after the marriage is dissolved.
- All actual damages and judgments from conduct that resulted in criminal conviction of either spouse in which the other spouse or a child was the victim.
Simplified, these factors can be reduced to weighing a spouse’s need for maintenance against the other spouse’s ability to pay. After consideration of these and all other “relevant” factors, family courts retain discretion to deny spousal maintenance even if a spouse qualifies under one or more of the eligibility criteria.
When awarded, maintenance is generally automatically collected from the obligor spouse’s paycheck by income withholding order and paid through a Clearinghouse. The dual purposes of the Clearinghouse are to facilitate timely payment and to maintain reliable records.
Modification or Termination
Spousal maintenance is modifiable unless the parties explicitly agreed to make it non-modifiable. Pursuant to A.R.S. § 25-327, spousal maintenance can be modified or terminated when there are “substantial and continuing changes” to material circumstances. Basically, this means that if there is sustained change to any of the factors under 25-319(B), modification or termination might be warranted.
Modifications typically are effective the first month following the date the petition to modify is filed. Maintenance is not modified retroactively, so it is important to act promptly when substantial changes justify modification.
Spousal maintenance presumptively terminates automatically upon the death of either party or remarriage of the party who receives support.