Friday, July 22, 2011

WHY IS IT SO HARD TO DETERMINE SPOUSAL MAINTENANCE?

I’ve said it before, and I’ll say it again: Spousal Maintenance is the greyest of grey areas in Family Law.  If you ask an attorney “How much alimony will I get in my divorce?” and he gives you a definitive answer – get up and run out of his office – and don’t look back! 

The fact is that Arizona law does not provide any definitive answers or formulas that the courts can use to determine spousal support.  Rather than a formula, Arizona Revised Statutes, Section 25-319 contains a list of factors that a judge can consider in deciding the amount and duration of spousal maintenance – or whether it should be paid at all.  But not one of those factors tells you “how much” or “how long.”

For child support, the courts use a standard set of guidelines which makes calculation a relatively simple matter.  Plug in the numbers, and the child support calculator will pop out a child support amount.  However, there are no generally accepted guidelines for spousal maintenance.  When such guidelines did exist most judges refused to use them (and for good reason - they just didn't seem to make sense).  Ultimately they were thrown out altogether.  Now, in determining the amount and duration of spousal maintenance the Court looks to the factors contained in the statute.  As a result, decisions can vary widely depending upon the numbers, the facts and circumstances, and even the jurist who is deciding the issue.

The prevailing view in Arizona is that spousal maintenance is intended to promote transition to financial independence.  This is called “Rehabilitative” spousal maintenance.  In most cases in which spousal maintenance is awarded, support will be ordered for a specific period of time so that the receiving-spouse can obtain the education, training, or experience necessary to increase her/his income to a level which will enable that person to be self-sufficient. 

Under certain circumstances, the Court may award spousal maintenance for an indefinite period of time, instead of a fixed term.  Some people refer to this as “lifetime” spousal maintenance.  But these cases are the exception rather than the rule.  They are generally limited to situations involving long-term marriages in which the spouse seeking support lacks a work history and/or is of an age where she/he can never be expected to become self-sufficient.  An indefinite award of spousal maintenance may also be justified if a spouse is disabled and incapable of working after the divorce. 

Where one spouse has sacrificed by working to help support the other while he/she obtained a professional degree (such as in law or medicine), and the marriage ends before the economic benefit is realized, it is not uncommon for spousal maintenance to become an issue.  The Arizona courts have held that an education is not community property subject to division in a divorce.  However, the supporting-spouse’s sacrifice, the other spouse’s educational degree attained during the marriage, and the potential for greater earning capacity can all be considered as factors, along with the others in the statute, in determining spousal maintenance.

With no guideline for calculating spousal maintenance, a judge is left to base her/his decision on the factors contained in the Arizona statute.  In determining how much support is appropriate, the courts often employ a “needs-based analysis” by looking at the requesting-spouse’s budget and examining the extent to which the monthly expenses exceed income.   A determination of how long the payments should be made will depend on the length of time the parties were married, their standard of living, how long it will take the spouse receiving maintenance to become self-sufficient, and the other factors listed in the statute.

There is no hard-and-fast rule for determining the amount or duration of spousal maintenance.  The Court makes that decision on a case-by-case basis using the list of factors contained in Arizona Revised Statutes, Section 25-319.  Because this is one of the greyest areas in Family Law, a proper presentation of evidence in the courtroom is essential -- in fact, it can be the difference between years of financial security . . . or no support at all.


Gary J. Frank, is an Arizona Family Law Attorney and former Judge Pro Tem with over thirty years of experience in dealing with spousal support and property division issues in divorce cases.  He also has many years of experience as a Family Law Mediator.  If you are in need of a consultation, please do not hesitate to contact us by telephone (602-383-3610) or by email through our website.  We look forward to hearing from you.


ARIZONA REVISED STATUTES, SECTION 25-319:

A.    In a proceeding for dissolution of marriage or a legal separation, or a proceeding for maintenance following dissolution of the marriage by a court that lacked personal jurisdiction over the absent spouse, the court may grant a maintenance order for the following reasons if it finds that the spouse seeking maintenance:

1. Lacks sufficient property, including property apportioned to the spouse, to provide for his or her 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; or
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 his or her own 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 his or her income or career opportunities for the benefit of the other spouse;
8. The ability of both parties after the divorce to contribute to the future educational opportunities of their mutual children;
9. The financial resources of the party seeking maintenance, including marital property apportioned to that spouse, and his or her ability to meet his/her own needs independently;
10. The time necessary to acquire sufficient education or training to enable the party to find appropriate employment, and whether such education or training is readily available.
11. Excessive or abnormal expenditures, 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; and
13. All actual damages and judgments from conduct that results in criminal conviction of either spouse in which the other spouse or a child was the victim.

C.    If both parties agree, the maintenance order and a decree of dissolution of marriage or of a 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.