One of the most complex and contested issues in a dissolution action is spousal maintenance. Spousal maintenance, previously known as ‘alimony,’ is a court-ordered award of payments from the spouse with higher income to the other spouse, often for a period of months or years.
In Arizona, spousal maintenance awards are governed by statute, codified at A.R.S. § 25-319. Spousal maintenance is a “two hurdle” question. First, you have to qualify under subsection A.R.S. §25-319(A), and only if you qualify, do you look at the amount and duration of the maintenance award outlined in subsection A.R.S. § 25-391(B).
The court’s decision to award maintenance is related to the following four factors: (1) whether one spouse lacks sufficient property to provide for their needs, (2) whether one spouse is unable to be self-sufficient either through employment or because they are the custodian of a dependent child and should not be required to work, (3) one spouse has contributed (often through sacrificing their own prospects) to the education of the other, and (4) whether the marriage was of long duration or one spouse is of an age which precludes their ability to become self-sufficient.
A finding of one or all of these factors could suffice to award spousal maintenance, and the judge’s discretion is broad. Many of the statute’s provisions, such as whether a spouse can be “self-sufficient” or is of an age which precludes their ability to gain “adequate” employment, rely heavily on the judge’s interpretation of the facts presented by the parties. The judge must also consider what he or she knows about the world in order to determine the likelihood of self-sufficiency, such as whether a particular skill set is marketable, whether a particular field of employment is stable, etc. Needless to say, the threshold matter of whether maintenance should be awarded largely depends on the type and strength of evidence presented by the parties to convince the judge to rule in their favor.
Once the judge determines that some maintenance is appropriate, they will turn to section B of the statute, which outlines some (but not all) of the factors used to set the duration and amount of the award. The statute’s list of factors includes some of the same provisions as in section A, like age and duration of marriage, but also considers future earning capacity and expenses (including educational expenses for mutual children), the roles that the parties assumed during the marriage and how those roles affected their ability to enter the labor market, and even foul play and damages caused to one spouse by the other.
Again, these determinations are highly fact-sensitive and give the judge a great deal of flexibility in deciding the proper duration and amount of the spousal maintenance award. Even the factors that the judge considers are not limited to the list in the statute: judges can consider any relevant (a legal term of art) information so long as they do not neglect applicable factors listed in the statute.
Even after the spousal maintenance award is ordered, a change in the circumstances could result in modification under A.R.S. § 25-327. This statute requires the party moving for modification to show that their circumstances have changed in a substantial and continuing way which makes the previous maintenance order no longer proper. The statute specifically mentions the addition or termination of health insurance coverage as a potentially “modifiable” change in circumstances, but virtually any substantial and ongoing circumstance with an impact on the parties’ finances could be cause for modification.
If it sounds as though all of these provisions lack clear legal standards, then you probably read them correctly: the body of law surrounding spousal maintenance is constantly changing and very discretionary. An effective attorney in this area is one who is creative and who understands the nuances of persuasion, as most spousal maintenance actions depend entirely on convincing the judge to adopt one party’s interpretation of a given set of facts. The judge is not required to consider evidence which is not properly presented, and it can be difficult to modify a spousal maintenance order once it is made final. Because an adverse spousal maintenance holding could result in thousands of dollars being improperly awarded, there is tremendous incentive to consult with an attorney – attempting to argue for or against a spousal maintenance award without the help of a qualified lawyer could have a lifetime impact on your income.