Arizona has no statute of limitation on collection of child support arrears, but it does have a statute of limitation on collecting spousal maintenance ("alimony") arrears.  The statute of limitation is three years past the termination date for the spousal maintenance obligation.

For example, if the court ordered Husband to pay Wife spousal maintenance through June, 2015, the deadline to file any petition to collect any arrears would be June 30, 2018.  This does not mean that the statute of limitation will bar collection of payments that are more than three years overdue.  For example, if the court ordered Husband to pay spousal maintenance through June, 2012, and Husband missed a payment in June, 2005, and Wife filed her petition to enforce spousal maintenance on June 1, 2013, then Wife’s petition is timely.

This means that people can wait to enforce spousal maintenance, but they cannot wait forever, like they can with child support.  However, as a practical matter, it does not make sense to wait to enforce either spousal maintenance or child support until the other party owes tens of thousands of dollars.  The larger the amount of arrears, the more difficult collecting the entire amount becomes.  A better course of action is to petition the court to enforce support orders before the amount of arrears grows too much, so that the other party begins to make regular, consistent payments.

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The Superior Court's website in Maricopa County has many useful forms for people representing themselves in court.  The family law category of forms is the most impressive, with forms for divorce, annulment, legal separation, child support, spousal maintenance, alimony, temporary orders, custody/legal decision making, parenting time, and many other topics.  I do not particularly like the forms because they are too long, sometimes don't make much sense, and lack flexibility, but they are far better than the alternative of not submitting anything at all, or someone with no legal background or training attempting to write court filings.  If you decide to use the court's forms, my advice is to do so with the advice of an experienced lawyer.  However, if you are using the forms, it is probably because you cannot afford a lawyer.  In that case, be very careful about what you sign and submit to the court.  Do not be afraid to cross out requests in the form that you do not want to make.

 

Aside from forms for family law, the court's website has many useful forms for probate, juvenile law, civl law, and powers of attorney.  The court has sufficient probate forms to complete an entire informal probate from beginning to end, juvenile court forms sufficient to complete a voluntary guardianship, and four powers of attorney sets of forms (general power of attorney, special power of attorney, parental power of attorney, and revocation of power of attorney).  The court also provides detailed instructions for its forms.

 

Again, my usual advice is to hire an attorney because attorneys have experience, are familiar with the judges, have an emotional detachment to your case, and know the potential pitfalls.  However, sometimes doing something on your own is better than doing nothing and the reality is that not everyone can hire an attorney.

 

This is the link to the Maricopa County Superioe Court's forms (Self Service Center): http://www.superiorcourt.maricopa.gov/SuperiorCourt/Self-ServiceCenter/

 

Good luck!

Published in Blog
Thursday, 10 July 2014 15:17

Arizona Spousal Maintenance Basics

The Arizona spousal maintenance statute sets forth a two-part determination regarding spousal maintenance.  This is the statute in its entirety:

Arizona Revised Statute § 25-319

A. In a proceeding for dissolution of marriage or legal separation, or a proceeding for maintenance following dissolution of the marriage by a court that lacked personal jurisdiction over the absent spouse, the court may grant a maintenance order for either spouse for any of the following reasons if it finds that the spouse seeking maintenance:

1. Lacks sufficient property, including property apportioned to the spouse, to provide for that spouse's reasonable needs.

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.

3. Contributed to the educational opportunities of the other spouse.

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.

B. The maintenance order shall be in an amount and for a period of time as the court deems just, without regard to marital misconduct, and after considering all relevant factors, including:

1. The standard of living established during the marriage.

2. The duration of the marriage.

3. The age, employment history, earning ability and physical and emotional condition of the spouse seeking maintenance.

4. The ability of the spouse from whom maintenance is sought to meet that spouse's needs while meeting those of the spouse seeking maintenance.

5. The comparative financial resources of the spouses, including their comparative earning abilities in the labor market.

6. The contribution of the spouse seeking maintenance to the earning ability of the other spouse.

7. The extent to which the spouse seeking maintenance has reduced that spouse's income or career opportunities for the benefit of the other spouse.

8. The ability of both parties after the dissolution to contribute to the future educational costs of their mutual children.

9. 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.

10. 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.

11. Excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community, joint tenancy and other property held in common.

12. 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.

13. All actual damages and judgments from conduct that results in criminal conviction of either spouse in which the other spouse or child was the victim.

C. If both parties agree, the maintenance order and a decree of dissolution of marriage or of legal separation may state that its maintenance terms shall not be modified.

D. Except as provided in subsection C of this section or section 25-317, subsection G, the court shall maintain continuing jurisdiction over the issue of maintenance for the period of time maintenance is awarded.

As you can see, Subsection A is the first part of analysis and addresses the threshold question: is a particular spouse entitled to an award of spousal maintenance.  If the answer is no, the analysis ends.  If the answer is yes, the court proceeds to the second part of the analysis set forth in Subsection B to address the questions of the monthly amount of spousal maintenance and the duration of spousal maintenance.

Note also that Subsection C says that the parties may agree that the spousal maintenance award may not be modified.  Unless the parties make this agreement, spousal maintenance is subject to modification until the duration of the award ends.  The Arizona Supreme Court has ruled that this section actually means what it says - if the parties agree that the award is not modifiable, it is not modifiable for any reason with no exceptions.

A couple of the ways that judges determine the monthly amount of spousal maintenance is that some use the guidelines authored several years ago by the Maricopa County Superior Court.  The guidelines are not the law.  The Superior Court created them after studying many spousal maintenance cases as a way for litigants and attorneys to attempt to predict the likely award if they go to trial.  One judge used the guidelines to determine a spousal maintenance award and the Court of Appeals ruled that trial courts may not do that - they must actually use the factors in Subsection B.  Later, some judges used the guidelines and said in their orders that they considered the factors in Subsection B.  This time, the Court of Appeals ruled that this is sufficient.  The guidelines are the difference in net monthly incomes of the parties times .015 times the number of years of marriage.  For example, if Husband’s net monthly income is $5,000, Wife’s net monthly income is $2,000, and the parties have been married for 20 years, the calculation is ($5,000 - $2,000) x .015 x 20.  In this case, the guideline amount for monthly spousal maintenance is $900.

The other way to determine the monthly amount of spousal maintenance is to determine the spouse’s monthly reasonable needs, subtract his or her monthly income (or what she is capable of earning), determine the paying spouse’s monthly income (or what he or she is capable of earning), subtract his or her reasonable needs, and see if the money left over is enough to make up the other spouse’s monthly deficit.

If you have a spousal maintenance issue or have questions about spousal maintenance, contact Thomas A. Morton.  I offer a consultation of about one hour for a flat fee that is substantially less than my hourly rate.  Thomas A. Morton is a Phoenix, Arizona divorce and family law attorney.

Published in Blog
Saturday, 23 November 2013 16:21

Spousal Maintenance and Alimony Basics

Most divorcing couples in Arizona only have a vague understanding about spousal maintenance (also known as alimony). Most people think that spousal maintenance means that the former husband must continue to support the former wife indefinitely. That is the result sometimes, but there are many different results and variations in a spousal maintenance case.

The State of Arizona has enacted specific statutes to guide judges and divorcing couples regarding spousal maintenance.

Arizona’s Spousal Maintenance Statutes

The court must first determine whether a spouse seeking spousal maintenance is entitled to an award of spousal maintenance. In making this determination, the court will examine whether the spouse seeking spousal maintenance meets the following factors:

1. Lacks sufficient property, including property apportioned to the spouse, to provide for that spouse's reasonable needs.

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.

3. Contributed to the educational opportunities of the other spouse.

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.

Generally, healthy spouses who have a good job or career, are young, or who had a marriage of less than five years will not get an award of spousal maintenance. However, there are exceptions, such as a spouse leaving a marriage of less than five years who did not work at all during the marriage, or a spouse with a good, but modest income leaving a marriage with a high standard of living because the other spouse developed a much higher income during the marriage.

After determining that a spouse is entitled to spousal maintenance, the court must examine the following factors to determine the monthly amount of spousal maintenance, and the duration of spousal maintenance. 

1. The standard of living established during the marriage.

2. The duration of the marriage.

3. The age, employment history, earning ability and physical and emotional condition of the spouse seeking maintenance.

4. The ability of the spouse from whom maintenance is sought to meet that spouse's needs while meeting those of the spouse seeking maintenance.

5. The comparative financial resources of the spouses, including their comparative earning abilities in the labor market.

6. The contribution of the spouse seeking maintenance to the earning ability of the other spouse.

7. The extent to which the spouse seeking maintenance has reduced that spouse's income or career opportunities for the benefit of the other spouse.

8. The ability of both parties after the dissolution to contribute to the future educational costs of their mutual children.

9. 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.

10. 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.

11. Excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community, joint tenancy and other property held in common.

12. 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.

13. All actual damages and judgments from conduct that results in criminal conviction of either spouse in which the other spouse or child was the victim.

If both parties agree, the maintenance order and a decree of dissolution of marriage or of legal separation may state that its maintenance terms shall not be modified. This means that if the parties agree, spousal maintenance will not be modified for any reason. The Arizona Supreme Court has ruled that this actually means for any reason, even if the spouse paying spousal maintenance becomes completely disabled. 

The court will maintain continuing jurisdiction over the issue of maintenance for the period of time maintenance is awarded.

Spousal Maintenance Guidelines

Several years ago, the Superior Court in Maricopa County, Arizona issued spousal maintenance guidelines. The guidelines were never substantive law that courts must follow, but were an attempt to give people a formula that they could use to try to predict a judge’s ruling regarding the amount and duration of spousal maintenance. The Superior Court formulated the guidelines after studying spousal maintenance awards on Maricopa County of a period of several years.

The formula for monthly amount is the difference between the net monthly incomes of the parties multiplied by .015, multiplied by the number of years of the marriage, or

(Higher Income - Lower Income) x .015 x Years of Marriage = monthly amount

For example, according to the guidelines, in a case where the husband’s net monthly income is $7,000, the wife’s net monthly income is $2,000, and marriage lasted ten years, the husband could expect to pay spousal maintenance in the monthly amount of $750 ((7,000 - 2,000) x .015 x 10 = 750).

What divorcing couples must realize, however, is that the guidelines are not the law. (In fact, I have dealt with attorneys who I wished had understood this). The Arizona Court of Appeals has ruled that judges must make rulings based upon the statutory factors, not the guidelines.

Additional Alimony Advice

The first step to receiving spousal maintenance/alimony is to have an experienced divorce attorney negotiate an agreement for it. However, if negotiations fail, an experienced attorney will make your case to the court.Men generally do not realize they may be eligible for spousal maintenance.

Many people believe that only women get spousal maintenance, but the law is gender-neutral. I will admit that many judges are much more harsh with spousal maintenance cases brought by men, but this is not the law and why we have a court of appeals.  

Arizona is a no-fault divorce state. Courts do not consider marital misconduct in a spousal maintenance case.

Also, the federal and state governments tax spousal maintenance to the receiving spouse. In other words, a spouse paying spousal maintenance deducts the payments from his or her income on his or her tax return and the spouse receiving spousal maintenance must declare the payments as income on his or her tax returns.

Finally, a spousal maintenance award is not always set at the same amount for the entire duration. For example, a court may award $1,000 per month for 24 months, $750 per month for 24 months thereafter, $500 per month for 12 months thereafter, and $250 per month for 12 months thereafter.

If you have spousal maintenance/alimony questions, contact Thomas A. Morton in Phoenix, Arizona.

 

 

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2916 N. 7th Avenue, Suite 100
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(602) 595-6870
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