Alimony is money that one spouse pays to the other for support either during or after a divorce (or both). In Arizona, alimony is called "spousal maintenance." When spouses separate, one person may be unable to pay for regular living expenses, in which case a judge may require the higher earner—whether that is the husband or the wife—to assist the lower earner financially for at least some period of time.
Types of Spousal Maintenance in Arizona
A judge in Arizona may award temporary—or "pendente lite," meaning pending the final divorce—maintenance during divorce proceedings. When the final order is entered, the judge may also order either temporary or permanent maintenance for a period of time. An order may direct one spouse to pay the other a lump sum, or more commonly, a monthly amount for a specific length of time.
Permanent spousal maintenance is becoming increasingly rare. Even after longer marriages, courts mostly tend to look at maintenance as rehabilitative—in other words, put in place temporarily to allow a spouse to find a job or obtain training and education to improve employment prospects.
In some situations, a court may award limited maintenance as reimbursement to a spouse who contributed to the advanced education and earning capacity of the other spouse. Courts generally award permanent maintenance only to spouses who are unable to become self-supporting—due to age or disability, for example—and even then only after long marriages. A couple can always agree between themselves to provide one spouse with long-term or permanent maintenance if both agree that this is fair.
Eligibility for Maintenance
To award spousal maintenance, a court must find that one spouse has financial need and the other has the ability to pay. An Arizona court may determine that need exists if one spouse:
- does not have enough property—even after the marital distribution—to provide for reasonable needs
- contributed to the other spouse’s educational opportunities, or
- is unable to be self-sufficient through appropriate employment.
Whether a spouse is able to be self-sufficient through employment requires the the judge to consider additional factors, including the current labor market and the spouse's existing skills and experience. Arizona courts give special consideration to older spouses who served as homemakers during long marriages, who commonly find that age and years out of the job market make it very difficult to find work that supports a lifestyle comparable to that enjoyed during marriage. A spouse who is the custodian of a very young child or a disabled child may not be required to seek immediate employment outside the home due to the needs of the child.
A court that finds spousal maintenance appropriate will set the amount and duration of the award after considering all relevant factors, including:
- the marital standard of living
- the length of the marriage
- the age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance
- the paying spouse’s ability to meet the financial needs of both spouses
- the spouses’ comparative financial resources and earning abilities
- contributions of the spouse seeking maintenance to the other spouse’s earning ability
- the extent to which reductions in income or career opportunities of the spouse seeking maintenance benefitted the other spouse
- both spouses’ ability to contribute to their children’s future educational costs
- other financial resources available to meet the needs of the spouse seeking maintenance, including an award of marital property
- educational or training opportunities available to the spouse seeking maintenance and time required to take advantage of any such opportunities
- either spouse’s excessive spending, or destruction, concealment, or fraudulent disposition of jointly held property
- costs of health insurance for each spouse, and
- any damages and judgments from a spouse’s conduct that resulted in criminal conviction, if the other spouse or a child was the victim.
Although some courts in Arizona have experimented with using formulas to compute spousal maintenance, an Arizona judge who consults a formula must still consider all of the factors outlined above. After taking such factors into account, a judge has discretion in deciding what amount to award, or whether to award any amount at all.
Termination or Modification
Couples may enter into their own agreements either waiving maintenance entirely or providing that neither will seek any changes to maintenance in court. Unless they make such an agreement, or unless the final divorce order says otherwise, either spouse may request a court to modify or terminate periodic payments due to a material change in circumstances. Payments end when the term of an award expires, when the recipient spouse remarries, or upon the death of either spouse.
Periodic maintenance payments are usually taxable to the recipient and tax-deductible by the payer. Couples can sometimes take advantage of this situation by structuring payments to create the best possible tax scenario for both spouses. The IRS generally treats lump-sum payments as property distributions even if the court or the couple refers to the payment as maintenance or alimony. Under these circumstances there would be no tax effects for either spouse.
Arizona Revised Statutes 25-319