Spousal Maintenance (alimony)


Spousal Maintenance, or alimony, as it is commonly referred to, is one of the most complicated areas of law in Arizona.  It is also one of the most important areas to be represented by knowledgeable attorneys such as ours.  In Arizona, the primary objective of spousal maintenance is to transition the receiving spouse towards independence.  Rainwater v. Rainwater, 177 Ariz. 500, 869 P.2d 176 (App. 1993).  This means that the court will look at the earning potential and the education level of the person receiving spousal maintenance.  Additionally, the court will look at the length of time it will take that person to advance enough in their career to become independent.  Wisner v. Wisner, 129 Ariz. 333, 631 P.2d 115 (App. 1981).  When determining the potential for a person to become independent, the court should not deny maintenance when prospects for employment are based merely upon hope and speculation.  Thomas v. Thomas, 142 Ariz. 386, 690 P.2d 105 (App. 1984).  Although the statute A.R.S. § 25-319 illustrates the general criteria for spousal maintenance, the presentation of a spousal maintenance case is very important.  To qualify for an award of spousal maintenance, one of the following must be true:

1.       The spouse lacks sufficient property, including property apportioned to the spouse, to provide for that spouse's reasonable needs; or

2.       The spouse 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; or

3.       The spouse contributed to the educational opportunities of the other spouse; or

4.       The parties had a marriage of long duration and is of an age that may preclude the possibility of gaining employment adequate to be self-sufficient. Elliot v. Elliot, 165 Ariz. 128, 796 P.2d 930 (App. 1990).

The complexity of the test does not stop with these four factors.  There are 13 other factors the court must examine to determine the amount of the award, if any, and the duration of the award.  These factors include:

·         The standard of living established during the marriage;

·         The duration of the marriage;

·         Your age, employment history, earning ability, and physical and emotional condition;

·         The ability of your spouse to pay maintenance while meeting his or her own needs;

·         The comparative financial resources of each spouse, including the comparative earning abilities of each spouse;

·         Your contribution to the earning ability of your spouse;

·         The extent to which you have reduced your income or career opportunities for the benefit of your spouse;

·         The ability of both parents to contribute to the future educational costs of your children;

·         The financial resources of the party seeking maintenance, including the marital property apportioned to you and your ability to meet your own needs independently;

·         The time necessary to acquire sufficient education or training to enable you to find appropriate employment and whether such education or training is readily available;

·         Whether there have been excessive or abnormal expenditures, destruction, concealment, or fraudulent disposition of community, joint tenancy, or other property held in common;

·         The costs for you to obtain health insurance and the reduction in health insurance paid by your spouse on your behalf; and

·         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.  A.R.S. § 25-319.

Types of Spousal Maintenance:

·         Rehabilitative: This is Spousal Maintenance that is paid to a spouse so that s/he can complete some action that enables them become economically self-sufficient.

·         Indefinite Spousal Maintenance: This is awarded to a spouse when “independence is unlikely to be achieved.”

Additionally, spousal maintenance awards are either modifiable or non-modifiable.  This distinction can have significant repercussions to both parties and requires careful analysis of the risks and rewards.  We can help you request spousal maintenance in a new or pending divorce case or we can assist you in seeking a modification of a spousal maintenance order from a prior divorce.

With so many factors to consider, it is important to properly prepare a spousal maintenance case, to either maximize the award, or minimize it, depending on which side you are on.  We can review the factors with you to decide whether you may make a claim for spousal maintenance or whether you may be ordered to pay spousal maintenance.