Spousal Support in Arizona (Spousal Maintenance & Alimony)
When couples in Arizona file for divorce, either spouse may request the court issue an order for Spousal Maintenance or Spousal Support (also commonly known as alimony). Spousal Maintenance is not awarded in every divorce in which it is requested, however. The purpose of maintenance is to help a lower-earning spouse complete education or training necessary to reenter the workforce and to support himself or herself. It is meant to be rehabilitative in nature. Spousal maintenance is often only ordered for a short duration of time following the end of a marriage. It may be ordered for a longer period of time when the marriages are considered to be long-term, which can be defined as lasting for more than 15 years.
How is Spousal Maintenance Calculated?
Judges are given broad discretion in whether to order spousal maintenance (alimony) as well as the amount of the payments. It is not guaranteed. Instead, judges consider a number of different factors that are outlined in A.R.S. 25-319 when they are weighing whether to grant a request for maintenance.
Some of the factors that a judge will consider include the following:
- Whether the requesting spouse is able to meet his or her needs on his or her own
- Inability of the requesting spouse to obtain employment because of caring for young children
- Inability of the requesting spouse to support himself or herself through a job
- Whether the spouse supported the other spouse through his or her education and career while forgoing his or her own opportunities
- Length of marriage combined with age that would preclude his or her ability to gain an education and enter the workforce
- How long it would take for the requesting spouse to obtain an education needed to get a better job
- The future earning capacities of both spouses
- The duration of the marriage
- Standard of living during the marriage
- The ability of the payor spouse to support himself or herself while making maintenance payments
- Whether either spouse concealed, wasted, or gave away property to prevent the other spouse from getting it in the divorce
- The ages of the spouses
- The difference in the incomes of the spouses
- Whether either spouse has a physical or mental condition
- The jobs of the spouses during their marriage
- The job-related skills of the requesting spouse
Courts do not take marital misconduct into account when they are determining whether to award spousal support. Maintenance is also not meant to be punitive, so a judge will not order a spouse to pay maintenance simply to punish him or her. The statutes do not provide guidance for how much maintenance that judges should order when they do grant a maintenance request. After weighing the factors and taking them into account, judges can grant maintenance in an amount and duration that seems fair under the circumstances.
Finally, under A.R.S. 25-530, courts may not consider veterans’ disability benefits awarded for service-connected disabilities as a part of the income of spouses when they are determining whether to award spousal maintenance.
How Long Do You Have to be Married for Spousal Maintenance?
Arizona does not have a minimum amount of time that people have to be married to get spousal maintenance (alimony). However, the length of the marriage is one of the factors that judges take into account when making spousal maintenance decisions. It is ostensibly possible for a spouse who has been married for less than a year to get maintenance, but it is unlikely. If maintenance is awarded to a spouse in a divorce after a short-term marriage, it will likely only be ordered for a couple of months.
The length of the marriage may also have an impact on the amount of maintenance that is ordered as well as how long the paying spouse will have to pay it. Courts are trending away from ordering maintenance, so it is unlikely to be awarded for more than a few years. For people who are ending long marriages in which there is a substantial disparity between the incomes of the spouses, maintenance may be ordered for a longer time period to the requesting spouse.
Rarely, spousal maintenance may be ordered to be paid until the receiving spouse either remarries or dies or until the paying spouse dies. This only occurs in situations in which the requesting spouse is unlikely to be able to get a job to support himself or herself because of his or her age or disability following a long-term marriage.
Is Spousal Support Different than Child Support?
Spousal support is separate from child support. Spousal support is meant to provide financial help to a spouse to enable him or her time to become self-supporting. Child support is ordered in the best interests of the child to try to provide him or her with a similar standard of living to the standard of living the child might have had if his or her parents had stayed together. All parents in Arizona are expected to contribute to the upbringing of their children. Unlike spousal support, which may or may not be ordered, child support is automatically ordered by the court in a divorce with children.
Watch this video of David Cantor talk about “How is Spousal Maintenance Calculated with Children”:
If a spouse is ordered to pay both child support and spousal maintenance, he or she must comply with both orders. Failing to make spousal maintenance or child support payments may result in civil and criminal penalties. It is possible that a spouse will be ordered to pay child support but not have to pay spousal maintenance.
What if my Ex-spouse Makes More Money Than Me?
You do not automatically qualify for spousal maintenance simply because your former spouse makes more money than you. Judges are able to exercise substantial discretion when determining whether or not to grant requests for maintenance. They will take into account income differences as well as the separate property that both spouses will receive in the divorce when they are determining whether an award of maintenance is appropriate.
If you are already divorced and did not request maintenance in your case, you cannot file a petition to receive spousal maintenance after the fact. Spousal maintenance is only awarded as part of a divorce. The only exception to this rule is if the divorce was granted by a court that was unable to obtain personal jurisdiction over the paying spouse. In that case, you can file a petition for spousal maintenance from your higher-earning ex-spouse after your divorce has been finalized.
What if my Ex-spouse Lives Out of State?
Under Article IV of the U.S. Constitution, each state must give full faith and credit to the judicial proceedings of other states. If you are awarded spousal maintenance in Arizona and your ex-spouse subsequently moves to another state, you can still enforce the Arizona court’s order. People are not able to move to other states to try to avoid paying court-ordered spousal maintenance or child support. When a spouse moves out of state, the spousal maintenance order can be sent to the new state so that the maintenance can be garnished from his or her wages.
What if my Ex-spouse Has Remarried?
If you are ordered to pay alimony to your ex-spouse and he or she remarries, the spousal maintenance will be terminated under A.R.S. 25-327. This means that you will no longer have the obligation to continue paying spousal maintenance. It is a good idea to notify the court of your ex-spouse’s marriage to make certain that the spousal maintenance payments will stop being collected from your wages. If you are the receiving spouse and your ex-spouse remarries, his or her new marriage will not obviate the requirement to continue paying your spousal maintenance.
What if I Lost my Job or am Unemployed?
If you have been ordered to pay spousal maintenance to your ex-spouse and you have lost your job or have become unemployed, you cannot simply stop making your maintenance payments. Instead, you must petition the court for a modification of your spousal maintenance order under A.R.S. 25-327. To prevail on a motion to modify spousal maintenance orders, you must be able to show that your circumstances have substantially changed and continuing.
If the court modifies or terminates the order for you to pay spousal maintenance, the order will not be retroactive. This means that you will still be obligated to pay any arrearages that you might owe. If you need a divorce modification, it is best to file for it as soon as your financial situation changes because the maintenance payments will continue to accrue while your modification case is pending.
Support Modifications can be tricky circumstances. This is why it is recommended to speak with an Arizona divorce attorney that can help.
What are the Penalties for Nonpayment?
If a spouse who is ordered to pay maintenance fails to pay it as ordered, there are several potential penalties. The spouse may be charged with a class 1 misdemeanor for willfully violating the court’s orders under A.R.S. 25-511.01. To prove the criminal case, a prosecutor will be required to show the following elements beyond a reasonable doubt:
- There was a maintenance order issued by the court;
- The order directed the defendant to pay spousal maintenance;
- The defendant received notice of the order;
- The defendant was willful or intentional; and
- The defendant disobeyed the order.
If the ex-spouse is convicted of the class 1 misdemeanor offense, he or she can be sentenced to serve up to six months in jail under A.R.S. 13-707. In addition to potential criminal penalties, there are also potential civil remedies. A spouse who is owed maintenance that his or her former spouse has failed to pay may file a petition to enforce spousal maintenance under A.R.S. 25-508. Once the petition is filed, the court will schedule a hearing. Since most spousal maintenance payments are made through the Support Payment Clearinghouse, it is possible to obtain records showing that the payments were not made.
If the maintenance was agreed to be paid directly in an agreement, the spouse who is responsible for paying will be responsible for proving that he or she did not miss a payment. If the court finds that arrearages are owed, it will issue a money judgment. The judgment can then be used to enforce the spousal maintenance arrearage amount of the judgment.
Spousal maintenance orders can be enforced in a number of different ways, including the following:
- Lien against property
- Appointment of a receiver
The money judgment will include interest in addition to the arrearage amount that is owed. If you are ordered to pay maintenance and are having difficulty with making the payments, it is better for you to talk to an experienced family law attorney at the Cantor Law Group instead of simply ending your payments. If your circumstances have undergone a substantial change since the time that the maintenance order was issued, it is possible that an attorney might be able to secure a modification or termination of the order. Failing to pay can result in civil and criminal penalties and could be much costlier in the long run.
Can Spousal Maintenance Be Discharged in Bankruptcy?
Some people wrongly believe that they can discharge spousal maintenance payments and debts by filing bankruptcy petitions. Spousal maintenance debt and payments may not be discharged in bankruptcy under 11 U.S.C. § 523(a)(5).[/toggle]
Contact the Cantor Law Group
If you are filing for divorce and believe that spousal maintenance may be an issue, it is a good idea for you to get help from one of the experienced family law attorneys at the Cantor Law Group. Our attorneys can analyze your finances and the factors that the court considers to provide you with an assessment of whether spousal maintenance is likely to be ordered. We can also help with petitions to modify and petitions to enforce existing orders. Call us today at 602.254.8880 or request a free consultation by filling out our online contact form.