“How can I get my ex to pay me support?”
Spousal Maintenance cases may be some of the most difficult to navigate. At Modern Law, we have secured indefinite spousal maintenance awards, interim spousal maintenance awards and have successfully defended against spousal maintenance claims. While the law offers parameters, a skilled lawyer is essential when navigating the treacherous waters of spousal maintenance.
Most people call it ‘alimony’ or ‘spousal support’ but A.R.S. § 25-319 refers to support of a spouse as ‘maintenance’. When a married couple seek a separation or dissolution, the court has the discretion to award maintenance to one spouse. The court bases its decision on a two-step process.
First Step: Qualification
The spouse seeking maintenance must show he or she qualifies by establishing any one of the following:
- Lacks sufficient property, including property received in the divorce, to provide for his or her reasonable needs;
- Unable to be self-sufficient through appropriate work, or lacks earning ability in the labor market adequate to be self-sufficient, or takes care of a child whose age or condition requires him or her to not work outside the home;
- Contributed to the educational or career opportunities of the other spouse; or
- Marriage was for long duration and he or she is of an age that prevents them from employment adequate to be self-sufficient.
Second Step: Analyzing the Factors
Once the court finds the spouse seeking maintenance has established one of the above qualifiers, the court must consider the following factors, in order to decide whether to award maintenance, and if so how much, and for how long:
1. Standard of living established during the marriage.
2. Duration of the marriage.
3. Age, employment history, earning ability and physical and emotional condition of the spouse seeking maintenance.
4. Ability of the spouse requested to pay, to meet his or her own needs while paying maintenance.
5. Comparative financial resources of the spouses, including their comparative earning abilities in the labor market.
6. Contribution of the spouse seeking maintenance to the earning ability of the other spouse.
7. Extent to which the maintenance seeking spouse reduced his or her income or career opportunities for the benefit of the other spouse.
8. Ability of both parties after the dissolution to contribute to the future educational costs of their mutual children.
9. Financial resources of the party seeking maintenance, including marital property awarded in the divorce, and that spouse’s ability to meet his or her own needs independently.
10. Time necessary to acquire sufficient education or training so that the maintenance seeking spouse may 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. Cost for the maintenance seeking 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.
Good Faith and Fair Dealing
When the issue of maintenance goes before the court, the court looks at the financial status of both spouses. The court uses objective factors, as listed above—what did one spouse give up, while helping the other spouse develop a better career? How much did the working spouse gain because the other spouse did not work to his or her full ability but assisted and supported the working spouse in career advancement? Based upon the above factors, there are various arguments that can be made for both the spouse seeking maintenance and the spouse wanting to limit the amount and duration of maintenance paid.
Factor 11, listed above, requires the court to determine excessive spending, concealing property, or fraud. However, the court will NOT consider “marital misconduct,” such as extramarital affairs. Any marital misconduct to be considered by the court in a spousal maintenance award must be financially based.
Some Further Advice
Couples who have been married for a time long enough to warrant an award of spousal maintenance, should consider the value of planning ahead. Spousal maintenance may have significant tax consequences. Each spouse should consult a lawyer in order to determine if either spouse may be entitled to, or responsible for paying maintenance. Spousal maintenance, like child support, can be covered in an agreement between the spouses. Although the spouses are divorcing, the ideal solution is to reach a mutually beneficial settlement agreement for spousal maintenance. Asking the court to decide spousal maintenance will result in an uncertain outcome, as well as increase stress, resentment, and legal fees. Unless it is obviously unfair or inequitable, the court will honor and enforce an agreement.