Alimony is an ancient idea- literally.
Among 282 laws etched into stone tablets, the sixth king of Babylonia declared any man who wanted to leave his wife must still provide for her and their children. The word itself stems from the Latin word alimōnia, meaning nourishment and sustenance. In the beginning, alimony protected women from being “discarded” with no reasonable chance of finding shelter, food or clothing.
In some ways, not much has changed since the Babylonian Code of Hammurabi from 1754 BC. Alimony- legally referred to as spousal maintenance in Arizona- in the United States is based off England’s ecclesiastical courts where divorce didn’t actually end a marriage. Rather, divorce was comparable to the modern legal separation. Because the marriage was still legally intact, it remained the husband’s duty to support his wife- deemed alimony.
With the liberalization of divorce laws in the 19th century, alimony became a form of punishment, or a “concept of fault”. Divorce was only allowed if there was proof of misconduct- if the husband broke his vows he would pay alimony to his wife; if she broke them, she forfeited her right to continued support.
Of course, divorce does mean divorce now. In the 1970s alimony lost its somewhat derogatory nature when the Supreme Court ruled gender bias could no longer be a factor in awarding support. Yet, it remains a hot button issue; sometimes it is necessary, sometimes it’s abused and then there’s thousands of couples who fall in between those extremes.
Despite your beliefs- or gender- spousal support is likely to come up in your divorce proceedings. Below are some tips on how to swing spousal support in your favor.
Understanding Qualifications and Disqualifications in Arizona
Arizona is a “no fault” divorce state, meaning the courts legally can’t consider marital misconduct when deciding on spousal support.
“Whatever fault there may have been- infidelity, alcoholism, gambling, drug problems, and the like- it is not a factor in awarding support,” Phoenix family law attorneys of Gillespie, Shields, Durrant & Goldfarb explain. “Which spouse initiated the divorce has no bearing…either.”
Instead, the courts base decisions off a list of factors involving a two-part test. While no single factor disqualifies a spouse, they must meet at least one to receive spousal support. Such maintenance becomes an option if one of the below circumstances exist:
- Spouse lacks sufficient property to meet reasonable needs
- Spouse is unable to sufficiently provide for themselves through employment or has custody of a child whose age or condition requires the parent to stay home
- The couple had a long marriage (there is no specified marriage length, however)
If the judge determines a spouse meets one of these requirements, phase two begins. The court analyzes all relevant factors to separation; because all divorces are different, no factor is weighted more than others. You should be prepared to answer questions such as:
- What was your standard of living?
- How many years did you invest in your marriage?
- Can the supporting spouse reasonably take care of his/her own needs while providing spousal support?
- Did one spouse set aside their career, education or employment goals for the other?
- Did a spouse hide property or assets or commit other destructive acts during the divorce process?
- Will each spouse have sufficient funds to help with the children’s educational costs? Will they only be able to help with educational costs?
- Necessary time for education/training for the seeking spouse to find appropriate employment
- Were there any convictions of domestic violence against a spouse or child?
While on the surface these questions may seem simple, consider their full scope and support your answers with proof (income statements, tax returns, etc). Answering these questions thoroughly and adequately, no matter what side you fall on, will go a long way toward a beneficial result in your spousal support case, according to Stewart.
There’s one notorious “however” with these court considered factors- one that upsets the divorcés and attorneys alike. Arizona family courts aren’t required to consider all the factors, sometimes leading to unpredictable outcomes.
To improve consistency and help provide predictability, Maricopa County (the state’s most populous county) created the Maricopa Spousal Maintenance Guidelines. The guidelines provide a formula from which a monthly support amount may be calculated. Yet, the same “however” persists. These guidelines are merely, well, guidelines, neither mandated nor authoritative. There are many cases where courts ordered significantly more or less than the guideline calculator would allocate.
“In a recent case, the usefulness of Maricopa’s guidelines was again minimized. In that case, the husband contended on an appeal of maintenance…[because the] award was significantly more than what would have been awarded under the guidelines’ formula,” Stewart said. “The appellate court disagreed with the husband [ruling] the court’s disregard of any such informal reference materials [guidelines] cannot give rise to a finding of abuse of discretion.’’
In short, without mandating the use of guidelines- as is for all child support cases- spousal support orders may never be uniform or predictable. For this reason, it’s essential all parties come prepared to argue in favor or against one of three types of spousal support available in Arizona.
Types of Spousal Maintenance in Arizona
- Permanent: Typically occurring when one spouse has a disability or in their elder years, permanent spousal maintenance is granted when there is no indication a spouse will ever be able to support themselves.
- Rehabilitative: A type of temporary spousal maintenance, rehabilitative support is awarded when one spouse is currently unable to support themselves, but will be able to after furthering their education or re-entering the workforce, for example.
- Compensatory: Compensatory spousal maintenance is generally awarded because one spouse contributed to educational opportunities of the other. A common example is when one spouse stays home with young children while the other continues with career advancement.
Unless specifically stated, spousal support is modifiable. Either party has the right to ask for the courts to review the ordered amount. Generally speaking though, modifications only occur when there’s a significant change in circumstances for either the awardee (ex: landed a high paying job) or payee (ex: lost a job). Retirement may or may not be grounds for modifications.
Of course, the best way to avoid the broad legal outcomes is outside the courts. Splitting couples can agree to a spouse’s right to receive support- from duration to amount and termination- through mediation. If neither party files a petition with the courts asking for spousal maintenance it will not become a part of the divorce proceedings. That said, if a party waives maintenance during the proceedings, they can’t go back – modify- and seek support.
Once a court order is reached, payments are enforced. Late payments aren’t considered regular debt and are non-dischargeable in bankruptcy. If a spouse is not paying, some options include:
- Placing a lien on the property
- Seizing tax returns
- Collecting through an income withholding order
- Levying against a bank account
- Securing court settlements (ex: personal injury claims)
In Arizona, the noncompliant spouse may also be slapped with a class 1 misdemeanor for having “willfully and without lawful excuse failed to comply with the court’s spousal maintenance order.” All of these options must be exercised through the courts and may be quicker and/or easier with help from your divorce attorney.
In the end, the primary goal of Arizona’s spousal maintenance system is for both parties to eventually achieve independence. To ensure you don’t pay too much or don’t receive too little, do your homework and understand your rights.
For more detailed information on guidelines, modifications or enforcement, contact our Phoenix spousal support attorney DeeAn Gillespie.