Spousal maintenance, formerly known as “alimony,” is intended as support so the parties can each maintain similar comforts as they did when they were married. Spousal maintenance is separate from the division of assets in a divorce or child support.
Contrary to popular belief, spousal maintenance is never automatic. In order to be awarded spousal support, the Court must make a finding that a party is entitled to an award. Arizona Revised Statute §25-319(A) enumerates the following reasons where spousal is appropriate if the spouse seeking the award:
- Lacks sufficient property, including property apportioned to the spouse, to provide for that spouse’s reasonable needs.
- 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.
- 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 be self-sufficient.
Once it is determined that a spouse is eligible for an award the court then considers several factors to determine the amount and duration for such an award under Arizona Revised Statute §25-319(B). Some of the factors include: the standard of living established during the marriage, duration of the marriage, age and earning ability, and financial resources of the spouse seeking maintenance, to name a few.
Generally, in Arizona there are three types of awards – permanent, rehabilitative and compensatory. Permanent simply means “for life.” The court will not place a duration on the award and this is usually in cases where the parties are married for a long duration and the spouse seeking the award is of retirement age. A permanent award is not typical but the specific facts of the case will determine whether a permanent award is appropriate. Rehabilitative is the most common type of award and it is intended to provide for a spouse for a period of time until he or she is able to support themselves. Lastly, a compensatory award is intended to compensate the spouse who has contributed to the educational opportunities of the other spouse. It should be noted that it is unlikely that a compensatory award will be granted if the community was benefitted for a length of time. Conversely, it is more likely that a compensatory award will be granted if the party filed shortly after he or she completed the education.
Even if spousal maintenance is appropriate, the parties may agree to waive spousal. However, once waived, it becomes non-modifiable and the party will have effectively lost their opportunity to modify if his or her circumstances change in the future. Spousal support ceases upon the death or remarriage of the receiving party unless otherwise agreed upon in the decree. If the award is determined to be modifiable, in order to modify there will need to be a showing of a substantial and continuing change in circumstance. It is a good idea to list the circumstances that would qualify as a substantial and continuing change, for example, when one party retires or the minor children are emancipated. Otherwise, it may be too tempting for a party to drag the other back into court every time any change occurs.
If you have questions about spousal maintenance don’t hesitate to reach out and speak with one of our experienced Family Law attorneys at Platt & Westby, P.C. or call our office at 602-277-4441.
By: Elizabeth Westby 8-2-17