Spousal Maintenance — Predictably Unpredictable

In this article, we'll introduce a few basic concepts about spousal maintenance. Included are the factors that Arizona family courts look to when determining whether spousal support should be awarded in a case. Judges have considerable discretion in awarding such support and there are no mandatory guidelines, as with child support. This makes it difficult to predict whether maintenance will be awarded and, if it is, how much it will be. We can make one prediction though: absent an agreement to the contrary, when a party receiving maintenance remarries, maintenance terminates. No Fault Divorce in Arizona. Arizona is a "no fault" divorce state, which means the court doesn't consider any acts of marital misconduct when deciding whether to award spousal maintenance. Which spouse initiated the divorce has no bearing on the court's decision either. Maintenance Factors. The controlling law on alimony awards in divorce or legal separation is A.R.S. § 25-319. The statute lists the circumstances when maintenance is permitted and the factors the court considers. Step One. Maintenance is only awarded when the facts presented establish that a spouse is eligible. To be eligible, the spouse seeking support has to fall into one of the following categories: 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. . . . 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. Step Two. After it is established that a spouse is eligible for maintenance, the court considers all relevant factors: 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. Modification, Taxes, and Life Insurance. The court maintains what is referred to as "continuing jurisdiction" over spousal support for the entire time it is awarded. The maintenance award may be modified, for example, when the obligor suffers a job loss. When spousal maintenance is modifiable, the supporting party has the right to motion the court for a lower amount because of his or her reduced earnings. It is possible for the parties to agree that the maintenance order will not be modifiable, which would be included in the court's order and decree. Who pays the taxes on support income? Unless the parties had some other agreement, the obligor paying the support will deduct the maintenance paid from his or her income, and so avoids the tax liability. The obligee receiving the support includes the support as personal income and is liable for the taxes. Lastly, the court may require that life insurance be maintained to guarantee that support payments continue without event or interruption for the entire period ordered, even beyond the obligor's death. If spousal maintenance is part of your divorce or legal separation, or a modification of an existing support order is involved in your case, then contact a family law attorney at the Law Offices of Scott David Stewart. Get the independent legal advice you can rely on, before your income is affected. Resource: Ariz. Rev. Stat. Sec. 25-319: Maintenance; Computation Factors http://www.azleg.state.az.us/FormatDocument.asp?inDoc=/ars/25/00319.htm&Title=25&DocType=ARS

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