Saturday, 23 November 2013 16:21

Spousal Maintenance and Alimony Basics

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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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