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A Comprehensive Guide to Spousal Maintenance in Arizona
Both the legal separation and divorce process can be overwhelming and confusing. And often, when spouses make the decision to get a legal separation or divorce, well-meaning friends and family begin giving them advice. More often than not, they hear firsthand tales of conflict and horrible courtroom battles.
Take heart, divorce does not have to be a battle. You can complete your entire legal separation and divorce process in a calm and respectful manner, even when deciding sensitive issues like spousal maintenance, under the guidance of a professional family mediator.
The divorce mediation process can support spouses in developing realistic expectations and assist them with reaching mutually beneficial agreements. After reading this article, you will have a general understanding of Spousal Maintenance in Arizona. More specifically, you will learn how mediation differs from litigation so that you can make an informed decision about how you wish to proceed with either legal separation or divorce.
Spousal Maintenance Basics
In Arizona, spousal maintenance, also called Alimony or Spousal Support, refers to support payments from one spouse to the other, following a divorce or legal separation. Spousal maintenance is necessary to ensure that both parties are able to remain financially stable following a divorce or legal separation; according to Arizona courts which generally follow a Needs-Based Approach.
Spousal maintenance payments assist the lower-income-earning spouse until they are able to provide for their own reasonable needs. This spousal maintenance is usually put in place for a limited amount of time. The goal and expectation is that after a reasonable amount of time, the spouse in need of spousal maintenance will become financially independent. It is also important to know that spousal maintenance is completely separate and different from child support.
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We File the Petition
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We Help You Reach Agreements
You, not the judge, remain in control of your terms. Your mediator will identify the issues, explain Arizona law, and help you reach your best possible agreement.
We File the Consent Decree
Your divorce is finalized when we file your consent decree with the court, without ever going to court.
Who gets Spousal Maintenance
Does every divorce involve Spousal Maintenance? No. Some cases do not consider Spousal Maintenance. Generally, it depends on each spouse’s financial circumstances—whether a need exists and the ability to meet that need.
In litigation, a judge may order Spousal Maintenance. In mediation, spouses agree on Spousal Maintenance and create their own agreement. If spouses are creating their own agreement, they can determine the amount and the length of time it will be paid. When a case is litigated in court, the judge makes these decisions.
Arizona awards for Spousal Maintenance are based upon a two-part consideration process: 1) Eligibility and 2) Amount & Duration. The following are descriptions of these considerations:
The first part of the consideration process determines whether or not one spouse is entitled to Spousal Maintenance. The court considers ONLY the circumstances of the person requesting the Spousal Maintenance when deciding entitlement. The person requesting Spousal Maintenance must meet at least one of the following conditions:
- Lacks sufficient property, including property apportioned to the spouse, to provide for that spouse’s reasonable needs. What does this mean?Sufficient property describes assets that, on their own, can provide for a spouse’s reasonable needs during their lifetime. The court considers sufficient property separately from one’s earning potential when determining whether or not it can provide for one’s needs during their lifetime. Spousal Maintenance may, in some cases, be awarded for a limited period of time to allow for conversion of sufficient property into a form that will provide support.
- 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. What does this mean? To determine whether or not a spouse is unable to be self-sufficient, the judge in a litigated divorce case will consider a number of spousal support factors. The judge will look at the earning potential of the spouse requesting support and the current labor market. Courts will determine and compare each spouse’s reasonable individual monthly expenses with their individual monthly income. This helps determine the extent to which each spouse may or may not meet their monthly expenses.For lengthy marriages, further consideration is given to stay-at-home spouses because they often have lower earning ability and a more advanced age. Consideration is also given to a parent who is the primary caretaker for a disabled child.In litigation, a judge requires the divorcing spouses to each submit an Affidavit of Financial information. Spouses often have a great deal of conflict over each other’s reported reasonable expenses. As this process continues, conflict rises.In mediation, the process is simplified. Each spouse prepares their own Monthly Budget Worksheet. The Mediator reviews the Worksheets with the clients and helps them make adjustments that are mutually beneficial. Mediation focuses respectful collaboration to problem-solve while simultaneously reducing conflict and stress.
- Has made a significant financial or other contribution to the education, training, vocational skills, career or earning ability of the other spouse. What does this mean? When one spouse provides support to the other, financially or otherwise, while they are completing school, training, or career advancement, the spouse who provided the support may be eligible to receive Spousal Maintenance. For example, if a wife financially supports her husband while he attends nursing school, she may be eligible for Spousal Maintenance. Another example may be when one spouse cares for the children at home while the other spouse earns an income from employment.
- Had a marriage of long duration and is of an age that may preclude the possibility of gaining employment adequate to be self-sufficient. What does this mean? This typically refers to marriages of twenty-plus years. However, it is subjective, and if you are litigating in court, it is up to the judge’s discretion as to what long duration means.In mediation, you will work together with your mediator to make agreements that will leave you both feeling financially secure. Your mediator will help you communicate in a way that results in productive cooperation.
- Has significantly reduced that spouse’s income or career opportunities for the benefit of the other spouse. What does this mean? If one spouse gives up career opportunities or income potential in order to further the other spouse’s career, they may be eligible for spousal support. For example, if one spouse wants to move to another country because of a great career opportunity and their spouse agrees to the move even though it will decrease their own chances for career growth, the sacrificing spouse may be eligible for Spousal Maintenance upon the couple’s divorce.Gender and/or sexual orientation have no effect on Spousal Maintenance eligibility, amount, or duration.That brings us to the end of the first part of considerations for Spousal Maintenance. We have learned that property, ability, contributions, duration of marriage, and sacrifice all play a role in determining eligibility. Only one of these is necessary for a spouse to qualify for Spousal Maintenance. Now, let’s take a look at the second part of the considerations for Spousal Maintenance.
Amount and Duration
The next step is to determine how much will be paid and for how long it will be paid. It is important to note that the court does not give any consideration to misconduct. Although a spouse may feel hurt by the actions of the other, Arizona is a no-fault state and does not consider the wrong-doing of any spouse with regard to Spousal Maintenance.
In Arizona, there is no Spousal Maintenance Calculator or formula used to determine Spousal Maintenance. In litigation, it is up to the judge to decide how much weight to give to each of these considerations:
- 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 maintenance,
- the ability of the spouse from whom maintenance is sought to meet their own needs while meeting those of the spouse seeking maintenance,
- the comparative financial resources of the spouses, including their comparative earning abilities in the labor market,
- 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 spouses, after the dissolution, to contribute to the future educational costs of their mutual children,
- the financial resources of the party seeking maintenance, including marital property apportioned to that spouse, and that spouse’s 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 available,
- the excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community, joint tenancy and other property held in common,
- the cost for the spouse 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 and;
- All actual damages and judgments from conduct that resulted in criminal conviction of either spouse, in which the other spouse or a child was the victim.
The difficulty is that these considerations are all subjective and each judge may consider them however they see fit in making a determination for spousal support. Considering the exact same circumstances, different judges’ decisions will vary from No Spousal Maintenance to Lifetime Spousal Maintenance or anywhere in between.
Mediation Takes a Different Approach toward Spousal Maintenance
In mediation, spouses communicate respectfully and work toward agreements that will ensure they are both financially secure following divorce or legal separation. Both spouses complete a budget worksheet, indicating their expected monthly expenses, using their most reasonable and accurate estimates.
After both spouses review the expected monthly expenses. It can become clear that one spouse may need some support in order to meet their reasonable monthly budgetary needs. Ideally, the spouse paying spousal support has an excess of income after expenses.
Mediators help spouses see disparities and work together to find creative solutions toward a balanced outcome. Maximum benefit is achieved when spouses work together, with a mediator’s guidance, and establish the goal of both spouses being financially secure into the future.
“I’m so glad we went the mediation route.”
“Well-organized, supportive, compassionate and effective: I’m so glad we went the mediation route. I was completely satisfied with the results.
Their level of skill and compassion surpassed what I expected during the difficult process of divorce.”
Types of Spousal Maintenance
Temporary Spousal Maintenance
Temporary Spousal Maintenance is put into place when it is necessary to establish a means by which the spouse in need can remain financially stable during the divorce or legal separation process. Temporary Spousal Maintenance can also be put into place after the divorce is finalized, but this would be very unusual. Receiving temporary maintenance before a divorce is finalized does not mean that Spousal Maintenance will necessarily be awarded after the divorce is final. In mediation, spouses remain in control of the amount at which and for how long Temporary Spousal Maintenance is to be paid.
Lump Sum Spousal Maintenance
Lump Sum Spousal Maintenance means that a spouse’s entire spousal maintenance obligation is paid in one single payment. Sometimes this is preferred by both the payor and recipient. The payor would prefer to avoid paying monthly payments. The recipient would prefer to have the ultimate security of resolving spousal support with one lump sum as well as control over a much larger amount of funds.
We also see agreements where spouses agree to give a discount on the overall support number if it is paid in a lump sum payment.
For example, a standard spousal maintenance agreement might be $1,000/mo for 12 months. The total award ($1000 x 12) is $12,000. If a lump sum agreement were discussed, the result may be that one spouse pays the other $11,000 — a $1,000 discount because it is being paid all at once.
Permanent Spousal Maintenance
Permanent Spousal Maintenance is uncommon. It is typically only seen in cases involving a very lengthy marriage, when one spouse has decreased earning potential due to decisions made during the marriage. For example, two young managers, earning the same amount of money, get married. As they grow their family, they decide the wife will stay at home and act as primary caretaker for their children. After their children are grown, and they have been married for twenty-five years, they decide to divorce. Husband’s career has advanced during the course of the marriage and it is clear that wife will not be able to achieve a comparable salary on her own in a reasonable amount of time. In mediation, the spouses may decide that some form of Permanent Spousal Maintenance is the only reasonable agreement. In the courts, a judge decides whether or not Permanent Spousal Maintenance is necessary.
Enforcing Spousal Maintenance
The courts are very strict in the enforcement of Spousal Maintenance. If Spousal Maintenance is not paid, here are some of the ways the court can enforce payment:
- Take out a Lien on Property owned by Payor
- Seize Tax Return Money of Payor
- Establish an Income-Withholding Order / Wage Garnishment against Payor
- Levy against a Bank Account (i.e., the court withdrawals the funds from the Payor’s Account without their permission)
It is important to note that once the Spousal Maintenance ends, the Payee must address any non-payment with the court within three years. If three years elapse, after the Spousal Maintenance ends, and you have not taken prior action, you cannot recoup any monies due.
How Loss of Income Affects Spousal Maintenance
The courts are guided by Perkins v. Perkins (Arizona Court of Appeals) in considering a change of circumstances when modifying Spousal Maintenance. The Perkins case provides these basic ideas:
- Failure to negotiate and/or recognize the reality of the circumstances will be considered unreasonable;
- Failure to make appropriate disclosure will be considered unreasonable;
- A single factor is sufficient to justify modification of a Spousal Maintenance order.
Under Perkins v. Perkins, the courts also consider whether or not the change in circumstance is temporary or expected to be continuing and explain what constitutes as ‘continuing’ changed circumstances.
Spousal Maintenance in Prenuptial Agreements
The courts honor valid prenuptial Spousal Maintenance agreements unless the lack of Spousal Maintenance will cause one spouse to become reliant on public assistance or welfare benefits. In mediation, spouses may choose to uphold the prenuptial Spousal Maintenance agreement or they may create new agreements.
Spousal Maintenance and Taxes
In Arizona, for divorces that take place after December 31, 2018, Spousal Maintenance payments are:
- not taxable income for the Payee
- not a tax deduction for the Payor
Spousal Maintenance Modification
Arizona Spousal Maintenance awards are automatically modifiable. However, Spousal Maintenance can be deemed non-modifiable per mutual agreement by both parties in mediation. Non-modifiable means that the Spousal Maintenance can never be changed, regardless of changes in circumstance. Generally, if a spouse declines or waives their right to Spousal Maintenance in court, they give up the right to make future claims for Spousal Maintenance. However—in spite of previous agreements—in mediation, spouses can elect to change previous agreements at any time.
Now you have a basic understanding of Spousal Maintenance and how mediation allows spouses to remain in control of their process. Although Arizona law can be confusing and vague, it does provide a loose guide for a judge to determine Spousal Maintenance. Unfortunately, judge’s opinions vary a great deal and they can use the guidelines however they see fit, giving more or less weight to each item, at their own discretion. To stay in control and help ensure an amicable resolution, spouses can elect mediation as a vehicle for their divorce process.
Skilled mediators help spouses keep conflict low, establish creative agreements, and make sure that all necessary items are addressed. For divorcing or separating parents, mediation can ensure a development of a constructive parenting plan, that will help them maintain a healthy co-parenting relationship long into the future.
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