How Much Will I get in Alimony?
THE MODERN LAW APPROACH TO CALCULATING
THE AMOUNT OF SPOUSAL MAINTENANCE
Spousal Maintenance is part art and part science. There is no clear answer to the question “How much will spousal maintenance be?” People often want to understand how much they may receive or how much they can expect to pay. Without a clear answer from the law, judges awards are all around the board inconsistent. That can make this issue one of the scariest to take in front of the court. The other trend in Arizona spousal maintenance or alimony cases is DOWN. Alimony awards are, in general, getting smaller and shorter. This is great news for the paying spouse, but not good news for the receiving spouse. With all this information generally comes more uncertainty, and it means that we need to give the judge an easy, rationale, and fair request for the proper award of alimony.
This approach isn’t limited to a judge, when negotiating, following this step by step approach will help you determine 1) how much does the recipient actually need in spousal maintenance and 2) how much can the paying spouse actually afford to pay?
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Arizona’s Spousal Maintenance Statute, A.R.S. § 25-319, is comprised of four subsections: (A) entitlement; (B) amount and duration factors; (C) modifiability; and (D) jurisdiction. This article assumes the spouse seeking maintenance has established entitlement to support pursuant to subsection A of the statute, and will focus creative ways to quantify the amount of spousal maintenance that should be awarded based on the factors identified in subsection B of the statute.
A.R.S. § 25-319(B) provides the following thirteen (13) factors the Court must consider when determining the amount and duration of a spousal maintenance award:
- (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 that spouse’s 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 that spouse’s income or career opportunities for the benefit of the other spouse.
- (8) The ability of both parties after the dissolution to contribute to the future educational costs of their mutual children.
- (9) The financial resources of the party seeking maintenance, including marital property apportioned to that spouse, and that spouse’s ability to meet that spouse’s own needs independently.
- (10) The time necessary to acquire sufficient education or training to enable the party seeking maintenance 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.
- (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.
The key thing to remember when formulating your spousal maintenance strategy and arguments for trial is that the judge is tasked with coming up with a number for spousal maintenance. Many litigants—and even some attorneys—are intimidate by spousal maintenance arguments because the judge has broad discretion and factors identified in the statute are seemingly more qualitative than quantitation. To fully appreciate this point, consider the difference between analyzing child support and analyzing spousal support. Unless there are factual disputes about a person’s earning capacity, determining child support is relatively black and white because you the Arizona Child Support Guidelines provide a child support calculator. As a result, determining the appropriate amount of child support is often as simple as plugging the numbers in. Conversely, not only is there no calculator for spousal maintenance, but it’s the governing statute, A.R.S. §25-319, provides no guidance as to how the factors identified in subsection B should be translated to achieve a numeric amount (the Court’s ultimate goal).
The inherently “grey” nature of spousal maintenance analysis makes the choice of who you select as your attorney all the more important. For example, a bad attorney will simply spout a number for spousal maintenance with little to no quantitative analysis. A skill attorney on the other hand will be prepared to offer numerical and mathematical support for their spousal maintenance request. At Modern Law, we have developed an analytical approach to determining spousal maintenance that can be used during settlement negotiation and at trial. The advantage of our approach is adds the weight of credibility behind requested number. Because the math is correct, unless determines the proposed expenses and/or incomes are not reasonable, it is more difficult for a judge to disagree with our proposed outcome. In the case of the bad attorney, because no evidence was presented supporting the requested amount from a mathematical standpoint, the judge has more room to disagree without the proposal. Under our approach, the judge is afforded less discretion because the Court has to reconcile its ruling against the specific and analytical arguments propounded by our client.
The Modern Law approach centers around the parties’ Affidavits of Financial Information (“AFIs”). Without divulging all our trade secrets, below are hypothetical category totals for two AFIs (one for each party) to help demonstrate five (5) easy to remember and useful tips when analyzing the appropriate amount spousal maintenance:
|Income||Wife’s AFI||Husband’s AFI|
|Child Care Costs||$-||$-|
|Debts (Monthly Min.)||$-||$1,987.00|
Note: Each highlighted entry illustrates the principle behind the tip of the corresponding color.
Tip 1. Don’t Take the AFIs at Face Value (Green).
The number of attorney’s who simply hand their client an AFI and have them fill it out with no revision process is shocking. While family law attorney’s work with AFIs on a daily basis, many litigants are encountering the document for first. As a result, it is extremely rare for a litigant to complete the AFI correctly without specific guidance from counsel.
Remember that credibility is your most important asset in family court because the judge’s have broad discretion and many cases boil down factual disputes where the only evidence is conflicting testimony from the parties. To avoid damaging your credibility when you are filling out your AFI remember that you are signing it under penalty of perjury and will be subject to cross-examination on all of the information you include in the AFI. Accordingly, as you fill out the AFI, make sure you are using reasonable numbers that can be supported by historical or projected data.
Taken at face value, our two hypothetical AFIs indicate that Wife has a gross monthly shortfall (income minus expenses) of $1,778 per month and Husband has a gross monthly shortfall (income minus expenses) of $1,287 per month. However, an examination of Husband’s tax returns reveals that his stated income only included his base salary, and excluded over $1,200 per month in commission pay and allotment benefits. Based on this adjustment alone, Husband’s growth monthly shortfall, which would suggest an inability to pay any spousal support, would convert to a gross monthly surplus (income minus expenses). Moreover, Wife’s AFI does not reflect that she will start a job in two months that pays $1,900 per month (gross).
Gross monthly income is not the only area where family law litigants often provide inaccurate or incomplete information on their AFI. The next four (4) tips will focus on identifying and addressing the other main problem areas.
Tip 2. Identify Current Expenses vs. Anticipated Expenses (Red).
Only anticipated expenses, not current expenses, should be used for spousal maintenance analysis. To help illustrative why this is important, consider that the parties to our hypothetical divorce own a home, which they have already agreed to sell, distributing the net proceeding equally after paying off all of the community debts. Wife is living in the home while the sale is pending. Husband has moved out and rented an apartment. Additionally, Husband is currently paying for Wife’s health insurance and unreimbursed medical expenses, but Wife will have to obtain her own after the divorce. Husband has not recurring and predicable unreimbursed health expenses. Based on this context, using the parties’ current expenses would to analyze Wife’s reasonable needs and Husband’s ability to pay would be disastrous
Here, Husband’s AFI housing expenses are extraordinarily high because he is currently paying the mortgage, plus rent. Conversely, Wife’s housing expenses are unrealistically low (zero) because Husband has agreed to pay the community bills while the divorce is pending. Using these number for the purpose of calculating spousal maintenance would produce an inaccurate result because after the home is sold, Wife will have to rent or buy a place of her own, and Husband will no longer be paying for the mortgage.
Wife has researched places to live, and determined that once the house sells, her monthly housing expense will be $1,756. Additionally, assume Husband’s rent is $1,900. These are the numbers that should be used for the purpose of accurately analyzing Wife’s reasonable needs and Husband’s ability to pay.
Once the house is sold, Wife will have to pay for utilities; whereas Husband’s utility payment will go down. Post-divorce, both parties will have an anticipated monthly utility expense of $500 per month.
Health Insurance and Unreimbursed Medical Expenses.
Currently, Husband is paying $580 per month to insure both parties, as well as $230 per month for Wife’s prescriptions. Post-divorce, Husband’s health insurance costs will be reduced to $280 per month, and Wife will have to pay $329 per month for insurance. Additionally, post-divorce the cost of Wife’s prescriptions will be transferred from Husband to Wife.
Husband’s AFI listed Wife’s auto loan payment. However, the loan will not exist post-divorce because it will be paid off in full using the proceeds from the sale of the parties’ home. Assuming the loan’s monthly payment is $600 per month, Husband’s post-divorce transportation expense will be $187.
Tip 3. Identify Unreasonably High or Low Expenses (Purple).
Both spouses have an incentive to inflate their expenses. The spouses seeking maintenance benefits from inflated expenses because they artificially raise that spouse’s reasonable needs. The spouse from whom maintenance is sought benefits from inflated expenses because they artificially reduce that spouse’s ability to pay spousal maintenance. As stated in Tip 1, we strongly disapprove or inflated or otherwise inaccurate information on a person’s AFI. However, it occurs often enough that it is important to stay vigilant.
Here, the parties have vastly different costs listed for food, clothing, and miscellaneous expenses. A closer look at Husband’s food expenses reveals that he is eating almost all of his meals outside of the home. Considering that the parties rarely ate out during their marriage, Husband’s listed food expenses could easily be deemed inflated and unreasonable. Additionally, while Wife historically spent more than Husband on clothes, $10 per months seems low. Upon review of the parties’ checking account transactions, it turns out that on average Husband spends close to $55 per month on clothing. Finally, a closer look at Wife’s miscellaneous expenses reveals that she is spending $500 per month on the parties’ dogs. This may seem extraordinary, but one of the dogs has severe and long-term health issues and Wife has receipts to show that the parties have been sending at least $500 per month on their pets for the past several years. As a result, although Wife’s miscellaneous expense total may appear unreasonable at first glance, further context supports its accuracy.
Tip 4. Check for Double Dipping Debts (Blue).
Litigants often mistakenly include their mortgage and auto loans under the debts section of the AFI. This resulting in double dipping those expenses because they are already provided for under the housing and transportation sections of the AFI.
Here, a quick glance at Husband’s AFI reveals that his debts total is higher than expected. Upon closer examination, it turns out that Husband included the monthly mortgage payment under this section. Also, it is important to remember that post-divorce, the parties’ debts, including the mortgage will be paid in full using the proceeds from the sale of the hope. Thus, each party will start their post-divorce life with zero debt.
Tip 5. Find the Nexus between Reasonable Needs and Ability to Pay.
In this case, the Court goal is to award Wife an amount of spousal maintenance that is within Husband’s ability to pay and will allow her to provide for her reasonable needs. In order to properly access this sweet spot, the Court needs accurate information about the parties’ anticipated post-divorce incomes and expenses. Based on the adjustments to the parties’ incomes and expenses from Tips 1 through 4, the following numbers should be used to determine the amount of spousal maintenance:
|Income||Wife’s Anticipated||Husband’s Anticipated|
|Child Care Costs||$-||$-|
|Debts (Monthly Min.)||$-||$-|
So, How Much Will I get in Alimony? $2,693 per month!
Here, Wife is operating will be operating at a post-divorce gross shortfall of $2,693 per month, which is well within Husband’s ability to pay. Notice the difference between this realistic scenario and the starting scenario based solely on the parties’ AFIs.
Note: For simplicity, the above analysis does not take into consideration taxes and/or deductions.