The term “alimony” has trickled into the English language from a Latin word meaning “to nourish”. It is also known in today's legal jargon as support, payment, recovery, allowance or lump-sum award. Arizona calls it spousal maintenance.
No doubt you have heard the expression, “I want my spouse to support me in the style to which I have grown accustomed.” I hear it often — from both women and men, many of whom misbelieve that a marriage license automatically equals alimony and an early pension.
Statistics and studies on the subject of spousal maintenance, and the different circumstances under which it is granted, are in short supply. Each state has adopted different laws. In Arizona there are few hard and fast rules, despite specific statutes and case law on the subject, since the trial judge has been given considerable discretion to decide the issue by the two Appellate Court Divisions and the Supreme Court of Arizona. There has also been little consistency among the trial judges. Thus, lawyers find themselves in constant quandaries predicting trial judges' awards of spousal maintenance in individual cases.
Some lawyers argue that spousal maintenance should be based on 25% of a husband's gross or net income, some believe child support should be deducted first from a husband's income before any spousal maintenance percentage applies. Others argue one-half if the marriage is long term, others believe length of payments should equal one-third the length of the marriage. But no lawyer really knows what a judge will do after trial.
Mrs. Royce has been married to Dr. Royce for 30 years. Their children are now grown. She has no assets of her own and a high school education. Dr. Royce will pay Mrs. Royce spousal maintenance, but how much and for how long? What happens when Dr. Royce retires?
The predictability factor becomes even more subtle as new facts are layered in like the health and wealth of both parties, a shorter marriage, a younger and childless couple, their standard of living, and on and on. In lieu of a litany of actual cases, I have opted for the simpler approach of reproducing the actual Arizona spousal maintenance statutes themselves. Study them. They may control your future. Review them before you talk to your lawyer and get a head start on that discussion.
A.R.S. § 25-319. Maintenance; computation factors
A. In a proceeding for dissolution of marriage or legal separation, . . . the court may grant a maintenance order for either spouse for any of the following reasons if it finds that the spouse seeking maintenance:
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.
B. The maintenance order shall be in an amount and for a period of time as the court deems just, without regard to marital misconduct, and after considering all relevant factors, including:
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 that spouse's 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 that spouse's 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 that spouse, and that spouse's ability to meet that spouse's 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 expendi-tures, 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.
C. If both parties agree, the maintenance order and a decree of dissolution of marriage or of legal separation may state that its maintenance terms shall not be modified.
D. Except as provided in subsection C of this section or § 25-317, subsection G, the court shall maintain continuing jurisdiction over the issue of maintenance for the period of time maintenance is awarded.
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A.R.S. § 25-327. Modification and termina-tion of provisions for maintenance, support and property disposition
A. . . . (T)he provisions of any decree respecting maintenance or support may be modified or terminated only on a showing of changed circumstances that are substantial and continuing except as to any amount that may have accrued as an arrearage before the date of notice of the motion or order to show cause to modify or terminate. The addition of health insurance coverage as defined in § 25-531 or a change in the availability of health insurance coverage may constitute a continuing and substantial change in circumstance. . . .
B. Unless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated on the death of either party or the remarriage of the party receiving maintenance.
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If you are still confused, here are the rules I go by:
1. It depends on the judge so “know thy judge”.
2. The statutory factors quoted above must be met and presented at trial in the most positive and persuasive way.
3. Never expect to receive what you deserve.
4. Unless you are super-rich, “style” will be reduced by the economic reality that two households must now be maintained on the same income(s).
© 2011 Mark Cord
Chapter 13, Divorce With(Out) Dignity