Adultery in Arizona: Does Cheating Affect Alimony?

Learn whether adultery can affect alimony in Arizona.

Alimony (Maintenance) in Arizona

Depending on which state you live in, the classic term "alimony" can have different names. In Arizona, it's referred to as "maintenance."

Divorce can cause financial turmoil for a couple. Often, one spouse is in better financial health than the other, such as by having a higher-paying job, a better career, or access to greater assets.

Maintenance is the amount that the higher-earning spouse pays to the lower-earning spouse, during and/or after a divorce. This maintenance payment is intended to provide a way for both spouses to have enough money to maintain, as nearly as possible, the standard of living they enjoyed during the marriage.

Unlike many other states, Arizona law doesn't provide for different types of maintenance, leaving the amount and duration of any award to the discretion of the judge. An Arizona court can order maintenance if it finds that spouses seeking support:

  • lack sufficient property to provide for reasonable needs
  • are unable to be self-sufficient through appropriate employment, or are the custodian of a child whose age or condition is such that the custodian shouldn't work outside the home, or lacks the earning ability in the labor market that's necessary to be self-sufficient
  • contributed to the educational opportunities of the other spouse
  • have been married to their spouse for a long time and are potentially too old to obtain adequate employment and become self-sufficient, or
  • have significantly reduced their income or career opportunities for the benefit of the other spouse. (Ariz. Rev. Stat. § 25-319 (A).)

Any of the above reasons is a sufficient basis for the court to award maintenance.

Although the law doesn't address specific kinds of maintenance, it could be helpful to categorize spousal maintenance as other states do, as a way to better understand the thinking that goes into a maintenance award. For example, maintenance that's ordered while the divorce is pending (meaning before a court issues a final judgment) is often referred to as "temporary" or "interim" maintenance. It's meant to preserve the financial status quo while the divorce process plays out and allows the lower-earning spouse to cover daily living expenses.

As for post-divorce maintenance, the judge will order an amount and duration that's fair and reasonable under the circumstances. Sometimes it will only last as long as it takes for the supported spouse to become self-sufficient. This is typically referred to as "rehabilitative" maintenance.

If one spouse contributed to the other spouse's higher education costs, a court may order reimbursement, which is called "compensatory" maintenance.

The court can also award support for lengthier periods. This type of maintenance is sometimes classified as "permanent." That's a bit of a misnomer, because there can be an end date tied to the occurrence of certain events, such as the recipient spouse's remarriage. You're apt to see this kind of maintenance in long-term marriages, which usually means marriages lasting ten years, if not longer.

Again, it's important to remember that a judge will make a maintenance decision based on the particular facts of each case.

If you're interested in learning more about this subject, you may find it helpful to review the process Arizona courts use to calculate maintenance.

Is Arizona a "No-fault" Divorce State?

Yes. With one exception (described below) Arizona is a no-fault state, which means, you can't file for a traditional divorce based on fault. A fault divorce is where one spouse alleges that the other spouse is guilty of specific misconduct that caused the breakup.

In Arizona, the only ground (legal reason) for a traditional divorce is irretrievable breakdown of the marriage, which means the couple can't get along and there's no reasonable prospect of reconciliation. It's referred to as "no-fault" because neither spouse is blaming the other for the failure of the marriage. (Ariz. Rev. Stat. § 25-312.)

What Role Does Adultery Play in an Arizona Divorce?

As noted above, there's one exception to Arizona's no-fault rule. Arizona will allow fault-based grounds for divorce for people who are in a "covenant marriage." This type of marriage is similar to conventional marriage except that the spouses undergo special premarital counseling to strengthen their bond.

Covenant marriages are premised on a greater commitment by the couple to attempt to stay together. As a result, the law makes it more difficult for couples in a covenant marriage to obtain a divorce. To that end, you might have to prove fault in order to end the marriage. Under Arizona divorce laws, adultery is one of the fault-based grounds for ending a covenant marriage. (Ariz. Rev. Stat. § 25-903.)

Does Adultery Affect Maintenance Awards in Arizona?

No. In Arizona, judges can't consider evidence of adultery when they decide whether to award maintenance, or the amount and duration of any such award. Maintenance orders have to be fair and must be made "without regard to marital misconduct". Judges can only consider certain factors, including:

  • the standard of living enjoyed 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 spouses who would pay maintenance to meet their own needs as well as the other spouse's
  • the spouses' comparative financial resources, 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 spouses seeking maintenance have reduced their income or career opportunities for the benefit of the other spouse
  • the ability of both spouses to contribute to the future educational costs of their mutual children after the divorce is finalized
  • the financial resources of spouses seeking maintenance, including marital property awarded to them by the judge, and also including their ability to meet their needs independently
  • the time necessary to acquire sufficient training or education to enable the spouse seeking maintenance to find appropriate employment, and whether that training and education is readily available
  • excessive or abnormal expenditures, destruction, concealment, or fraudulent disposition of the couple's commonly-held assets
  • the costs involved regarding obtaining and maintaining health insurance, and
  • all actual damages and judgments from conduct that resulted in the criminal conviction of either spouse in which the other spouse or a child was the victim. (Ariz. Rev. Stat. § 25-319 (B).)

Does Adultery Affect Custody or Child Support?

Not usually. But be mindful that when it comes to custody matters, judges are obligated to prioritize the best interests of the child. So if a parent's adulterous behavior compromises a child's welfare, then that could certainly enter into a judge's decision regarding custody, meaning who will make the major decisions in a child's life, and where the child will live.

For example, let's say a parent frequently leaves a young child alone while that parent is out engaging in an extra-martial affair. Or let's say a parent's new partner poses a danger to the child. A judge will certainly take these circumstances into consideration when making custody decisions and may limit that parent's custodial time. (Ariz. Rev. Stat. § 25-401 and following.)

As for child support, under Arizona's child support guidelines the amount of time a child spends with the parent who is obligated to pay child support will factor into a calculation of the support amount.

As a rule, the more parenting time you have, the less child support you'll pay. This is because when parents spend time with their children, they're spending money on the child (for example, on food, shelter, clothes, and activities). If the court denies or significantly limits parenting time because of a parent's adulterous behavior, the offending parent will be paying more money for child support. (Ariz. Rev. Stat. § 25-320.)

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