[Updated 4/12/2019] Another question I receive a lot as a Phoenix Divorce Mediator is: “How much Spousal Maintenance will be awarded?” That is a great question and many of us divorce mediators wish there was a black and white answer! In Arizona, the amount and duration of spousal maintenance (alimony) is discretionary with the Court. Despite popular belief, we do not currently have a “formula” that the Courts apply.
In Arizona, spousal maintenance is decided pursuant to a statute: A.R.S. §25-319 (full text here). It is a two-prong analysis.
First, under Part A, one spouse must “qualify” for spousal maintenance by meeting 1 of 5 subjective tests. A new, 5th test was added by the Arizona Legislature in April of 2018. The fifth test reads, “Has significantly reduced that spouse’s income or career opportunities for the benefit of the other spouse.” This expands the qualifying factors.
Additionally, the Legislature modified the third condition, which now reads, “Has made a significant financial or other contribution to the education, training, vocational skills, career or earning ability of the other spouse,” recognizing one spouse for furthering the opportunities of the other. Again, this expands the qualifying factors from the original law.
How Arizona divorce judges will apply these new factors will be interesting. In general, there has been a trend for Arizona courts to restrict spousal maintenance awards, or when awarded, limit them to small amounts for short periods of time, usually to the detriment of the lower earning spouse, or spouse who took time off to stay home with the kids. It seems the Arizona legislature is trying to send a message to the divorce judges that more spouses should be able to qualify for spousal maintenance in these situations.
If a spouse is determined to qualify, then under Part B, 13 subjective factors are taken into consideration in deciding duration and amount. Among other things, this includes the length of the marriage, standard of living during the marriage, and the earning ability of the spouse seeking support. In practice, divorce judges have applied these factors inconsistently, on a case-by-case basis with no clear cut guidance on how such awards are decided.
The lack of guidelines in Arizona combined with the subjective nature of the analysis can create a myriad of inconsistent spousal maintenance awards. I’ve heard of a case where a student attending school full-time and taking care of small children did not receive any spousal maintenance. In another case, I was told that an educated, employable wife without minor children was awarded such a significant amount of spousal maintenance, she did not have to re-enter the workforce. So, sometimes it seems as if there is no “rhyme or reason” in these awards. I’m sure many of you have heard similar stories.
To avoid this “guessing game,” in my divorce mediation sessions, the couples with whom I work typically decide their own spousal maintenance award, if any. In addition to reviewing the statute, we take a look at the whole picture from a personal, financial, tax, and future goal perspective. We also discuss each person’s own personal sense of fairness given the history of the couple and the marriage. This usually results in a much more workable and satisfying agreement, not only around the issue of spousal maintenance, but also around the other divorce, child support and parenting plan provisions.
As a divorce mediator, I can’t tell you what I think is fair, what a Judge would order or whether you even qualify for spousal maintenance. But, I can help you figure it all out in a collaborative manner that makes sense, is practical and, hopefully, feels fair to both of you.
Still have questions? Give us a call at 602-714-7447.
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