The Anatomy of a Divorce,
In a divorce, an award of spousal maintenance (or
"alimony") must pass a two-step test set forth in Arizona law
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The Anatomy of a Divorce, Part 1:
The Anatomy of a Divorce, Part 2:
The Anatomy of a Divorce, Part 3:
The Anatomy of a Divorce, Part 4:
Child Custody and Access
The Anatomy of a Divorce, Part 5:
The Anatomy of a Divorce, Part 7:
Awards of Attorney's Fees
More Articles on Divorce-Related
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
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:
Lacks sufficient property,
including property apportioned to the spouse, to provide for that spouse's
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
Contributed to the educational
opportunities of the other spouse.
Had a marriage of long duration and
is of an age that may preclude the possibility of gaining employment adequate to
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,
The standard of living established
during the marriage.
The duration of the marriage.
The age, employment history,
earning ability, and physical and emotional condition of the spouse seeking
The ability of the spouse from whom
maintenance is sought to meet their own needs while meeting those of the spouse
The comparative financial resources
of the spouses, including their comparative earning abilities in the labor
The contribution of the spouse
seeking maintenance to the earning ability of the other spouse.
The extent to which the spouse
seeking maintenance has reduced their income or career opportunities for the
benefit of the other spouse.
The ability of both parties after
the dissolution to contribute to the future educational costs of their mutual
The financial resources of the
party seeking maintenance, including marital property apportioned to them and
their ability to meet their own needs independently.
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
Excessive or abnormal
expenditures, destruction, concealment or fraudulent disposition of community,
joint tenancy and other property held in common.
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.
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.
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.
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.