What exactly is spousal maintenance, and why does it exist?
Spousal maintenance is perhaps the least understood aspect of divorce. If you listen to the talk at cocktail parties, it is always awarded and is the bane of existence for the payor and a coveted prize for the payee. The reality is much less exciting and dramatic. Think of it more as a temporary "equalizer" or "band-aid" that helps soften the blow of going from two incomes or one spouse providing all or almost all of the family's needs to single heads-of-household, with or without a job. Although decreasingly common as society continues to change, it comes up most often in families with children, and usually starts like this: The couple agrees that one spouse--usually the wife, but not always--will stay home full-time and take care of the kids cook, clean, keep up the house and yard, drive the family taxi and do all of the family's shopping, errand running errands and bill-paying. This arrangement allows the other spouse to focus most if not all of his or her effort on making a living.
So can I expect to get (or pay) spousal maintenance?
First of all, don't EXPECT anything, because judges are increasingly hesitant to award ANY spousal maintenance in these post-modern, post-women's lib times when, in theory at least, women's earning power is the same as men's. Although it is being shattered ever more frequently, statistics bear out that a glass ceiling remains, and men on average still get paid more than women for doing the same kind of work. But a bigger problem than disparate income between the sexes, is that women (or men) who stay at home to raise children may fall far behind the other spouse in terms of career training, job skills and the like. They might have to switch careers, go back to school to get a degree or take specialized courses to renew a certificate/license, refresh a knowledge base or brush up on skills, not to mention possibly settling for an entry level position when they return to the workforce even though they might have previously experienced some advancement or promotion in their chosen field.
So what exactly is required for spousal maintenance to be awarded?
Arizona law provides that a judge MAY award spousal maintenance in a divorce if one of the parties: "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." A.R.S. 25-319. No. 1 refers to the person's assets that they will take with them when the marriage ends; No. 2 regards employability and wage earning capacity; No. 3 refers to supporting the other spouse while they went to school; and No. 4 relates more to older couples divorcing.
So how much money am I likely to get IF spousal maintenance is awarded?
In determining the amount and duration of a spousal maintenance award, the court must consider "all relevant factors," including an enumerated list too lengthy to detail in full here (A.R.S. 25-319). Certainly many of the issues discussed above would be relevant, as well as other issues that may or may not apply to your particular situation, such as: the standard of living enjoyed during the marriage; length of marriage; age of prospective payee, his or her work history, earning power and physical and emotional health; how easy or difficult it will be for the prospective recipient to get health insurance or the other spouse to add or keep them on their insurance; the time needed to acquire sufficient schooling or training to reenter the job market; and whether and the degree to which either spouse fraudulently disposed of community assets. A good rule of thumb is that a court is unlikely to award spousal maintenance for a term longer than half the number of years a couple was married.
But how much will I get each month?
This question is just about impossible to put a dollar figure on, as it varies wildly from couple to couple. It depends on the total income of the intact marital household; the spouses' relative earnings or earning power; how lucrative and in-demand their particular profession or position is; how long they have been in or out of the workforce, by choice or otherwise; age and how many working years they have left before they could retire; projected monthly expenses as a single person; whether and what ages minor child(ren) are, or whether there is a handicapped child that will need lifelong care. Sometimes, getting the other spouse to agree to add or continue you on their health insurance for a specific period of time, while you try to get a job that will allow you to obtain your own health insurance, is more important than a cash award of spousal maintenance. Whatever you two agree on, the court will only grant it if it is reasonable, fair and just.
So then what is the point of asking for spousal maintenance if it is so hard to get?
Look at spousal maintenance not so much as the holy grail or some huge windfall to be won, but rather as a practical means to an end. While almost never ample enough to cover every conceivable financial need of a former spouse, it can help a stay-at-home mom (or dad) become a self-sufficient single custodial parent or get their pre-kid career back on track. It also can ease the transition for an older stay-at-home wife into single retiree status. Spousal maintenance may not truly be needed, or a spouse may be eligible but is willing to forego the award in exchange for something else even more important to them, such as custody of the minor child(ren), health insurance (as discussed in Section 5 above) or being able to stay in the family home. So, it's all relative and really about balancing the respective needs and desires of both spouses to arrive at a mutually agreeable compromise. Or, if the parties cannot agree, then the court will order whatever it deems best for all involved.
A footnote: So what is 'palimony' then?
You may have heard the word "palimony" tossed around, usually in the same sentence with "alimony." But unlike alimony, palimony is not a true legal term. Whatever its origins, it simply denotes court-ordered payments to an unmarried former romantic partner. However, most states do not award equalizing payments to either partner if the couple never married. In Arizona, which is one of nine community property states, common-law marriage is not recognized as a matter of law. "Common-law" is when a court considers a couple married just the same as if they had been officially wed by a judge or preacher, because they cohabitated for a certain lengthy minimum period of time and/or met other indicators, like having a signed written agreement or holding themselves out to the public as married. But even if a state recognizes common-law marriage, in this age of supposed equality regardless of gender, receiving a reward of "palimony" is an unlikely scenario even for former same-sex couples.
This legal guide should not be construed as formal legal advice or the formation of a lawyer/client relationship.
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