Spousal maintenance is awardable to either spouse,
without regard to marital misconduct.
In a proceeding for dissolution of marriage or legal separation, the court may grant spousal maintenance (alimony) to either spouse. Contrary to popular belief,
- spousal maintenance is not based on infidelity or marital misconduct
- it may be granted to either a husband or wife, and
- it is not awarded with great frequency
The court may grant spousal maintenance if it finds that the spouse seeking maintenance:
Lacks sufficient property, including property apportioned to the spouse, to provide for that spouse’s reasonable needs; or
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; or
Contributed to the educational opportunities of the other spouse; or
Had a marriage of long duration and is of an age that may preclude the possibility of gaining employment adequate to be self-sufficient.
Arizona law provides that a spousal maintenance order, “shall be in an amount and for a period of time as the court deems just,” without regard to marital misconduct. In determining the amount and duration of spousal maintenance, the court must consider the following 13 separate factors (these are from the statute):
The standard of living established during the marriage;
The duration of the marriage;
The age, employment history, earning ability and physical and emotional condition of the spouse seeking maintenance;
The ability of the spouse from whom maintenance is sought to meet that spouse’s needs while meeting those of the spouse seeking maintenance;
The comparative financial resources of the spouses, including their comparative earning abilities in the labor market;
The contribution of the spouse seeking maintenance to the earning ability of the other spouse;
The extent to which the spouse seeking maintenance has reduced that spouse’s income or career opportunities for the benefit of the other spouse;
The ability of both parties after the dissolution to contribute to the future educational costs of their mutual children;
The financial resources of the party seeking maintenance, including marital property apportioned to that spouse, and that spouse’s ability to meet his or her own needs independently;
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;
Excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community, joint tenancy, and other property held in common;
The cost for the spouse who is seeking maintenance to obtain health insurance and the reduction in the cost of health insurance for the other spouse if the other spouse is able to convert family health insurance to employee health insurance after the marriage is dissolved; and
All actual damages and judgments from conduct resulting in conviction of either spouse in which the other spouse or child was the victim.
Unlike an award of child support, for which the Arizona Supreme Court has established guidelines for determining the amount, there are no guidelines for determining the amount of spousal maintenance. The court has broad discretion to determine whether a party is entitled to spousal maintenance and, if so, the amount and duration of the spousal maintenance to which that party is entitled. In determining whether to award spousal maintenance or the amount of any such award, the court will not consider any veterans disability benefits awarded to the other spouse. The court’s decision to grant or deny spousal maintenance usually will not be disturbed on appeal.
While statistics are hard to come by, anecdotal evidence suggests that spousal maintenance is awarded in less than 10% of all domestic relations cases in the state of Arizona. The frequency of spousal maintenance awards has declined in recent years as more couples both work outside the home and there are fewer marriages of long duration.
A person who is obligated to pay spousal maintenance pursuant to a court order and who willfully and without lawful excuse fails to comply with the order is guilty of a class 1 misdemeanor.
In a case in which spousal maintenance is awarded to a party, both the amount and duration of the award may subsequently be modified by the court. To modify a spousal maintenance award, a party must file a petition with the court, and prove a “substantial and continuing change of circumstances” since the original award. A spousal maintenance award will be modified based on the changed circumstances of the parties.
The parties in every case are free to agree that neither the amount nor the duration of the spousal maintenance may be modified, in which case the award will be non-modifiable.
Spousal maintenance is terminated by the death of the person paying it, or upon the death or remarriage of the person receiving it. Cohabitation with a member of the opposite sex by the person receiving spousal maintenance does not automatically trigger termination of the award.
The party paying spousal maintenance generally gets to deduct the amount paid on his or her income tax return, and conversely, the party receiving spousal maintenance must report the payments as income. The Internal Revenue Service has adopted rules to determine whether a payment from one former spouse to another will be treated as alimony for income tax purposes. Merely calling a payment spousal maintenance does not necessarily make it so for tax purposes. Child support payments, by comparison, are neither deducted by the payor nor reported as income by the recipient.
The above article is an excerpt from Arizona Laws 101: A Handbook for Non-Lawyers, 2nd Edition (Fenestra Books, 2012), by Donald A. Loose, republished with the author’s permission.
Disclaimer: Laws change constantly. Specific legal advice should be obtained regarding any legal matter. The information contained on this website does not constitute legal advice and no attorney-client relationship is created.
Donald A. Loose is an Arizona attorney, and the author of Arizona Laws 101: A Handbook for Non-Lawyers, and Estate Planning in Arizona: What You Need to Know. Mr. Loose is a regular guest on radio shows featuring local newsmaker interviews. He may be contacted at firstname.lastname@example.org.
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