Briefly stated, spousal maintenance (also referred to as spousal support or alimony), is court-ordered support paid by one spouse (obligor) to the other spouse or former spouse in the divorce or legal separation.
Awarding Spousal Maintenance.
Because Arizona is a “no fault” divorce state, the court cannot consider any acts of marital misconduct when deciding whether to award, or not to award, spousal maintenance. Whatever fault there may have been — infidelity, alcoholism, gambling, drug problems, or other — it is not a factor in awarding spousal support. Which spouse initiated the divorce has no bearing on the court’s decision to award maintenance either. The applicable statute, A.R.S. § 25-319, involves a two-part test to determine the appropriateness of a spousal maintenance award under the unique circumstances of each case.
A.R.S. § 25-319(A). First, a spouse must be eligible for spousal support. An award of maintenance is ordered only when the facts presented establish that at least one of the following exists:
1. [Spouse lacks] sufficient property, including property apportioned to the spouse, to provide for that spouse’s reasonable needs.
2. [Spouse 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. . . .
4. [The couple had] a marriage of long duration and [the spouse] is of an age that may preclude the possibility of gaining employment adequate to be self-sufficient.”
A.R.S. § 25-319(B). Second, once the court has determined that the spouse is eligible for maintenance, the court’s analysis opens to consider all of the relevant factors listed below. None of these factors takes priority and none are given any particular weight in the court’s analysis.
B. The maintenance order shall be … 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.”
Vocational Evaluators.
The employability and earning potential of the party seeking spousal maintenance is often a question for expert analysis. An expertise of a vocational evaluator is often utilized to assist in establishing a spouse’s earning ability. The vocational evaluator is experienced and knowledgeable in the relevant area’s job market. The spouse seeking maintenance would be required to meet with the vocational expert for an evaluation of job skills, potential employment, and earning capacity. The vocational expert reviews the party’s resume, interviews others in the same employment field, and conducts studies of labor market trends. The expert prepares a report with conclusions and recommendations, including the income that the expert believes the party is capable of earning. When a party seeking maintenance is underemployed, meaning the person could earn more, then the vocational expert’s report will reflect that.
Paying Spousal Maintenance.
Spousal maintenance can be paid in a lump sum of money or be made in payments spread out over a specified period of time. The support may be in the form of a title transfer, or possession or interest in certain personal property, or possession or security interest in real property.
Tax Considerations.
With spousal maintenance, the income tax obligation shifts from the paying spouse (obligor) to the receiving spouse (obligee). The supporting taxpayer may deduct the money paid for spousal support, or alimony. The spouse or former spouse receiving the alimony must include it as income on his or her tax return. For further tax information, we recommend you consult with your independent tax advisor.
Termination of Spousal Maintenance.
Spousal maintenance ordinarily terminates when the recipient remarries or dies. Maintenance may terminate on a specific date, if it is scheduled to continue for a definite period. It may also terminate with the recipient’s continuous romantic cohabitation with another. The court may require that a life insurance policy be purchased to guarantee that maintenance payments continue for the entire ordered period, even if the obligor is deceased.
Spousal Maintenance Agreement.
The parties are encouraged to come to agreement on matters of spousal maintenance. Mediation and negotiation during the divorce process can help the parties resolve their support issues. The parties can agree on a spouse’s right to receive support, the duration of support, the amount of support, if the amount can be modified or not, when support will terminate or the event upon which it will terminate. When all things are considered, it is often better for the spouses to negotiate their property and spousal maintenance awards between themselves, rather than leave those matters to the broad discretion of the court.
Modification of Maintenance Award.
The court maintains continuing jurisdiction over spousal maintenance for the entire time it is awarded. The maintenance award may be modified when there is a substantial change in circumstances after the original order was issued. As when the paying spouse (obligor) experiences a reduction in income, perhaps because of an injury or job loss. When spousal maintenance is modifiable, either party has the right to ask that the court change the amount. The parties may have agreed, however, that the maintenance order will not be modifiable. In that case, non-modification of maintenance would be stated in the court’s order and final decree.
Enforcement.
In addition to civil remedies available for nonpayment of support, like wage garnishment, under A.R.S. § 25-511.01 when the noncompliant obligor has notice of the maintenance order, he or she can be convicted of a class 1 misdemeanor for having willfully and without lawful excuse failed to comply with the court’s support order.
History of Spousal Maintenance.
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