Thursday, 10 July 2014 15:17

Arizona Spousal Maintenance Basics

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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.

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2916 N. 7th Avenue, Suite 100
Phoenix, Arizona 85013
(602) 595-6870

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