Arizona is one of the states that allows for spousal maintenance, also known as alimony in other jurisdictions. We at Burggraff Tash Levy PLC understand how complicated and confusing divorce laws can be, and we want to make sure you have all the information you need to understand the laws in this state. Whether you are going through a separation or a divorce, the laws regarding spousal maintenance will probably apply to you.
We can help you learn about spousal maintenance, the different kinds of spousal maintenance, and how spousal maintenance is applied in the state of Arizona. We will help you understand the factors the state considers when calculating spousal maintenance and the different ways an award of spousal maintenance could be ordered. We can also help you decide if you are in a position where you should ask for a modification of spousal maintenance if you are already subject to an order.
If you have any questions about the law in general or your specific situation, never feel shy about asking. We understand how difficult it can be to determine your position and what your responsibilities are.
What Is Alimony?
When a married couple goes through a separation or divorce, the two individuals may be differently situated as far as earning ability. Some differences are natural, as one has simply chosen a higher earning profession. Quite often one party takes time out from working to care for the children, or one partner supports both of them while the other earns an education.
Whatever the cause, one party often starts with an unfair economic advantage during a separation or divorce. Arizona is a community property state, so assets are divided equitably from the marital pot, but spousal maintenance offers another kind of benefit for those who are trying to move on.
When the marriage is dissolved, the party who sacrificed to work or take care of the family will now have to start from a disadvantage. There are other cases where the parties simply have different resources and there needs to be a transition while the two start over. Other situations calling for the Court to step in and help achieve equity include age, disability and other work situations the parties agreed on to accommodate their married life. Instead of requiring each party to go it alone, spousal maintenance (alimony) laws allow the party with lower earning capacity to make the transition more gradually.
It is vital to remember that the Court can order spousal maintenance, but you are also free to negotiate a fair agreement regarding an award of spousal maintenance (alimony). This may lead to a more satisfactory result that both parties are more comfortable with.
Whenever you can find common ground with your soon to be ex-spouse, you will find it easier to move on after the divorce. No matter how necessary it is to sever the marital ties, the process is painful and stressful and there are ways you can make it easier for yourself and your family.
Kinds of Spousal Maintenance
Unlike the laws governing child support, judges in Arizona have broad discretion when making decisions regarding spousal maintenance. Child support payments are based on a parent’s adjusted gross income and there is less leeway because it is expected that children will be supported by their parents and Arizona has created guidelines for courts to follow when awarding child support.
Regarding spousal maintenance, there may not be an award of spousal maintenance at all after a divorce, or it may be ordered to end within a period of time because of the parties’ circumstances. Arizona does not have guidelines for spousal maintenance like it does for child support. Rather, the court’s rely on enumerated factors to make their decision and every order for spousal maintenance will be tailored to the situation the parties are in, but also considers both past and future factors. Even though the alimony order is discretionary, the Court must consider many different details, including income and earning ability, assets, education, age, and other relevant factors.
Traditionally, an award of spousal maintenance-also known as alimony-typically falls into one of these three categories: Permanent, Rehabilitative, and Compensatory.
A permanent or ongoing award for spousal maintenance is one which is set up with no termination date. These are used most often ordered when one of the spouses are too old to be reasonably expected to enter the workforce, or if that person is suffering from a disability which reasonably prevents them from working.
Typically, a permanent award of spousal maintenance will only end with the death of one of the parties, remarriage of the former spouse receiving the award, or a substantial change in circumstances that make the award unnecessary.
The most common kind of spousal maintenance is a rehabilitative award. When people are married, they act as partners, and that often leads to one of the partners being better situated in the workforce. One of the partners may have made sacrifices so the other could continue to work while the children were young or worked a less desirable job because the job was located where the other partner needed to be. Many times a spouse may put off getting a college degree of family obligations.
With rehabilitative spousal maintenance, the Court may order that one party pay the other long enough for that person to finish a degree or go through training. There may be a date set, or the judge may order the award of spousal maintenance to stop when certain conditions are met.
This kind of spousal maintenance is not as common, and many are not aware it is available. Sometimes all that is needed for fairness is that one of the parties be compensated for what was essentially an investment in the other. A good example of this is when one spouse pays for the education of the other and provides the kind of environment where that person can finish a degree to be eligible for better opportunities. The Court in those cases might order a certain amount of money to be paid over a period of time to compensate the partner who helped the other achieve so much.
Arizona’s Approach to Spousal Maintenance
The courts in Arizona do not typically identify an award of spousal maintenance under one of the categories listed above. However, in recent years, awards of spousal maintenance would likely fall into the rehabilitative category. Our office has seen awards of spousal maintenance aimed at one spouse getting back into the workforce, obtaining their own housing, and other ways to ease the transition into their new post-divorce life.
That is not to say that an award of spousal maintenance could not be permanent or seem compensatory in nature. Again, Arizona relies on specific factors in making determining an award of spousal maintenance and each case presents different circumstances that may adjust an award.
Factors the Court Considers When Determining Spousal Maintenance In Arizona
One of the surprising things about Arizona spousal maintenance laws is how subjective they are. There isn’t a worksheet that applies to spousal maintenance cases which can be applied universally, like with child support orders.
In order to qualify for spousal maintenance, a spouse must prove one of these five factors:
- The spouse doesn’t have sufficient property to meet his or her needs — people shouldn’t have to use up all their resources to meet their own needs, and the Court will try to find a way to help with the transition so they can receive support prior to becoming self-sufficient;
- The spouse is unable to make enough money in the workforce because of a need to care for a dependent, or because of other reasons, so that the individual is unable to be self-sufficient on his or her own; when evaluating this issue, the Court may consider factors like how long someone has been out of an industry and how much training is needed to go back, or whether the person put aside his or her own needs for education and training to care for the family;
- The spouse making the request has assisted the other spouse significantly in advancing the other’s career by way of education, training, or other career help that put the other at a significant advantage;
- That the couple was married for a long time and now the spouse is of an age where it may be difficult or impossible to be self-sufficient in the workplace; or
- That the requesting spouse has given up opportunities and/or income to further the other partner’s opportunities.
Spousal maintenance is not ever intended to take away the responsibility of able parties to work and take care of their families; rather, it is intended to give individuals a more level playing ground after getting a divorce so that they will be able to accomplish those needs on their own.
The Amount of the Award
There are many factors the Court will consider, and the statutes list these specifically:
- The standard of living to which the partners became accustomed during the marriage, such as whether they lived lavishly;
- How long the marriage actually lasted;
- The defining characteristics of the person asking for maintenance, such as age, earning ability and employment history; the Court can also consider other characteristics such as mental illness or physical disability;
- The ability of the other spouse to meet his or her own needs while paying maintenance to the other;
- The individual earning capacities of each party and their personal financial resources;
- Whether and how much the individual seeking the award is contributing to the financial prospects and earning ability of the other;
- How much the person seeking the award has given up in the way of financial or career opportunities to support the other;
- How well both parents will be able to meet the educational needs of the children they share;
- The actual resources of the person seeking alimony, such as whether that person has already gotten the home as part of the divorce settlement, and that person’s ability to be self-sufficient in the current job market;
- How long it will take the requesting party to acquire the necessary education and/or training in order to become self-sufficient in the job market;
- Other factors specific to the case, such as if there are necessary extraordinary expenditures, or even if one party has committed fraud, concealment or unnecessary expenditures of property the two parties share;
- Health insurance costs, such as how much it will cost the parties because of the divorce to have health insurance for themselves and their families; and
- Expenses related to criminal actions by one spouse in which the other was a victim, including actual damages and judgments from court proceedings.
The Length of the Award
The Court will consider all of the above factors when deciding how long the award should last. In some cases, there is an obvious reasonable end date, such as when the award of spousal maintenance provides a plan for one partner to finish a degree and go back into the workplace.
Modifying Spousal Maintenance in Arizona
Spousal Maintenance laws in Arizona only allow you to change or terminate the spousal maintenance order at certain times and/or under certain conditions. The Court that approved the original order will retain jurisdiction over the matter, meaning that court is the one that will hear any requests for change. The standard by which the Court will make the decision is generally subjective and is based on a “substantial and continuing change in circumstance.”
Before asking for a modification or termination, you should look at your original order and see what the order was based on. Because the order is based on very individual circumstances, there should be a clear list of the justifications for the award, including the amount and how long the award will be paid. You should make sure when you go through the initial process that the original order clearly lays out all the reasons because otherwise, you might have a difficult time proving that there has been a significant and continuing change. That is one reason you should always use an experienced family law attorney to help you when you have any legal matters that might go to court.
There are some circumstances where the law will not allow the award to be modified. One of those situations is when you and your former spouse make an agreement when negotiating the award that the award cannot be modified or terminated. As long as the agreement was negotiated fairly, the Court is unlikely to modify the order because of a change that happens later.
What Constitutes a Change in Circumstance?
One party getting married again almost always terminates the spousal maintenance. At that point, the parties getting married have taken on each other’s obligations and benefits, and it would be unfair to force a former partner to continue to pay.
Death is normally a final and substantial enough change in circumstance to terminate an alimony order.
The courts in Arizona have not ruled that something as simple as one former spouse moving in with a new partner is enough of a change in circumstance to modify or terminate a spousal maintenance award. This is generally referred to as cohabitation. The Arizona courts have not considered it unfair for the former spouse to continue to pay support to a former partner who is now cohabitating with a new partner.
The other change of circumstance most commonly cited as a reason to modify spousal maintenance is a change in income. Spousal maintenance is meant to rectify inequality, and once the inequality doesn’t exist there is no need for the remedy. Even if you can’t have the order terminated, you may be able to lower the amount of the order.
The Changing Landscape of Spousal Maintenance or “Alimony” in Arizona
There have been several changes over the years that have caused there to be different kinds of awards. In the past, men provided for their families while women stayed at home and cared for the children, and when the couple divorced, the women often needed help to get back into the workforce. Many women had never considered that they would need to work.
Nowadays women are often independent professionals who earn more than their husbands, who may be the ones staying at home watching the children. Because of the differences in situation and circumstance, there are more women paying spousal support to men than in the past.
Of course, there are also changes because of the Supreme Court ruling legalizing same-sex marriage. In Arizona, the rules are still the same that the person making more may have to pay spousal support to the other partner after a divorce.
If you may be facing a separation or divorce, you should talk to an experienced family law and divorce attorney as soon as possible to get the information you need and protect yourself. The sooner you prepare yourself, the more advantageous your position will be when you start the proceedings.