Spousal maintenance, also known as alimony or spousal support, is court-ordered support paid by one spouse to the other spouse or former spouse in the divorce or legal separation. The details of awarding spousal maintenance may be difficult for you, as establishing the need for and an amount of spousal maintenance can be one of the more complicated and challenging aspect of your divorce case. You need to have a solid understanding of how the courts make decisions about whether to award or not award spousal support.
Spousal maintenance is determined through the court by taking into account a number of financial and work-related issues pertaining to both parties. Depending on the length of the marriage, the parties income levels and work history, the court may (or may not) decide to include maintenance as part of the divorce settlement. To understand the support analysis, you need to review A.R.S. § 25-319 which is the controlling Arizona statute over spousal maintenance.
Awarding Spousal Maintenance
Arizona is a “no fault” divorce state and the court cannot consider any acts of marital misconduct when deciding whether to award, or not to award, spousal maintenance. Whatever fault there may have been is not a factor in awarding spousal support. Which spouse initiated the divorce has no bearing on the court’s decision to award maintenance either. The applicable statute, A.R.S. § 25-319 involves a two-part test to determine the appropriateness of a spousal maintenance award under the unique circumstances of each case. Read spousal maintenance details for a complete analysis of all factors.
Spousal Maintenance Agreements
As you can see, there are many factors the court must take into consideration when making a spousal maintenance determination. Thus, the parties are encouraged to come to agreement on matters of spousal maintenance. Mediation and negotiation during the divorce process can help the parties resolve their support issues. The parties can agree on a spouse’s right to receive support, the duration of support, the amount of support, if the amount can be modified or not, when support will terminate or the event upon which it will terminate. When all things are considered, it is often better for the spouses to negotiate their property and spousal maintenance awards between themselves, rather than leave those matters to the broad discretion of the court.
Paying Spousal Maintenance
Spousal maintenance can be paid in a lump sum of money or be made in payments spread out over a specified period of time. The support may be in the form of a title transfer, or possession or interest in certain personal property, or possession or security interest in real property.
Modification of Maintenance Awards
The court maintains continuing jurisdiction over spousal maintenance for the entire time it is awarded. The maintenance award may be modified when there is a substantial change in circumstances after the original order was issued. As when the paying spouse (obligor) experiences a reduction in income, perhaps because of an injury or job loss. When spousal maintenance is modifiable, either party has the right to ask that the court change the amount. The parties may have agreed, however, that the maintenance order will not be modifiable. In that case, non-modification of maintenance would be stated in the court’s order and final decree.
Termination of Spousal Maintenance
Spousal maintenance ordinarily terminates when the recipient remarries or dies. Maintenance may terminate on a specific date, if it is scheduled to continue for a definite period. It may also terminate with the recipient’s continuous romantic cohabitation with another. The court may require that a life insurance policy be purchased to guarantee that maintenance payments continue for the entire ordered period, even if the obligor is deceased.
Enforcement of Spousal Maintenance
In addition to civil remedies available for nonpayment of support, like wage garnishment, under A.R.S. § 25-511.01 when the noncompliant obligor has notice of the maintenance order, he or she can be convicted of a class 1 misdemeanor for having willfully and without lawful excuse failed to comply with the court’s support order.
Tax Considerations
With spousal maintenance, the income tax obligation shifts from the paying spouse to the receiving spouse. The supporting taxpayer may deduct the money paid for spousal support, or alimony. The spouse or former spouse receiving the alimony must include it as income on his or her tax return. For further tax information, we recommend you consult with your independent tax advisor.
