family law

The Anatomy of a Divorce,
Part 6: Spousal Maintenance

In a divorce, an award of spousal maintenance (or "alimony") must pass a two-step test set forth in Arizona law

John McKindles

August 2012

The Anatomy of a Divorce, Part 1:
The Divorce Plan

The Anatomy of a Divorce, Part 2:
Asset Distribution

The Anatomy of a Divorce, Part 3:
Debt Allocation

The Anatomy of a Divorce, Part 4:
Child Custody and Access

The Anatomy of a Divorce, Part 5:
Child Support

The Anatomy of a Divorce, Part 7:
Awards of Attorney's Fees

More Articles on Divorce-Related Issues

Spousal maintenance (formerly called “alimony”) is a type of financial support that, as part of a divorce, one spouse is ordered to pay to the other. A spousal maintenance obligation is neither presumed nor applicable in all cases; in Arizona and many other states, spousal maintenance will be ordered only if certain conditions exist.

Qualifying for Spousal Maintenance

Arizona law (A.R.S. § 25-319) sets forth four criteria for an award of spousal maintenance, three of which pertain to the requesting spouse’s financial need. If the court finds that any one of the criteria is met, a spousal maintenance award may be issued.

Arizona’s two-step analysis requires the court to first qualify the party for an award of spousal maintenance, before determining the amount and duration of such an award. The requesting spouse has the burden of showing that he or she satisfies one of the following conditions:

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.

Amount and Duration

The second step – determining the amount and duration of spousal maintenance – is more involved. A.R.S. § 25-319(B) requires the court to consider, without regard to marital misconduct, all of the following criteria, when applicable:

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 their own 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 their 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 them and their ability to meet their 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.

How the court’s consideration of these factors results in the amount and duration of a spousal maintenance award is well beyond the scope of this overview. However, in its determination, the court is required to consider every relevant statutory factor.

Several years ago, the Maricopa County Superior Court tried to structure guidelines, consistent with statutory criteria, to assist in calculating spousal maintenance. While the guidelines were never formally enacted to govern such awards, they can be used informally. At this time, however, a judge has discretion in whether to use the guidelines.

Modification

The court retains jurisdiction to modify the award (e.g., adjusting the length of time for which spousal maintenance is to provided, or modifying the amount of the payment), unless the parties agree that the award is to be non-modifiable.

Sometimes spousal maintenance can be permanent, depending on the weight of the statutory factors listed above. More commonly, spousal maintenance terminates once the recipient dies or remarries. (In some cases, negotiated spousal maintenance agreements provide that maintenance ends upon a showing of cohabitation; enforcing such provisions is often difficult, but not impossible).

In any event, once spousal maintenance terminates, the court has no jurisdiction to order further spousal maintenance.

Other Considerations

Insurance. Sometimes, parties will agree to use life insurance to secure continued spousal maintenance payments in case the recipient outlives the payor. Without such an agreement, the courts will generally not require any such security.

Taxes. Finally, spouses who negotiate a spousal maintenance obligation should consider the income tax consequences, as spousal maintenance is deductible to the payor and included in the taxable income of the recipient. To avoid tax issues, spouses might agree to make property settlement adjustments to lessen the tax impact of spousal maintenance payments. Such an agreement should be reached with input from a tax professional, however, to survive IRS challenges of an unsupportable categorization of taxable spousal maintenance.