SAME SEX MARRIAGE AND SPOUSAL MAINTENANCE
By: Brian G. Winter, Esq.
The legalization of same sex marriage has dramatically changed the legal
landscape for same sex couples in Arizona. Prior to the United States
Supreme Court granting the right to marriage to same sex couples in the
2015 case of
Obergefell v. Hodges, there was no recognition of any marital or financial community for same
sex couples regardless of how long the parties were married. This has
now changed. Now married same sex couples can avail themselves to the
same community property laws that govern the dissolution of marriage in Arizona.
One of the new rights that will have the greatest impact is the ability
to receive spousal maintenance. Before same sex marriage was legal in
Arizona, the financially disadvantaged party to a same sex marriage was
neither entitled to nor permitted to receive spousal maintenance when
the relationship broke down. Even if a person would have qualified for
an award of spousal maintenance under Arizona Revised Statutes Section
25-319, a court in Arizona could not award spousal maintenance for the
simple reason that the marriage between same sex couples was not recognized
as a valid marriage and spousal maintenance could only be awarded in a
divorce. If there is not a valid recognized marriage, then by extension,
there cannot be a divorce. The result was that even if a party was unable
to be self-sufficient and did not have the financial means to support
themselves, there was no protection under the law for same sex married couples.
In a dissolution of marriage in a same sex marriage, a party may now seek
and be awarded spousal maintenance if they are entitled to receive spousal
maintenance under the statute. The rules are now the same for any legally
married couple whether they be heterosexual or same sex. The court must
first determine if a spouse is entitled to receive spousal maintenance,
and if so, in what amount and for how long.
Despite this new right, there are still some unanswered questions, which
the courts will have to address. For example, can the court consider the
time a same sex couple was living together, but not legally permitted
to marry, when determining the duration of spousal maintenance? Regardless,
what is most important is that now the financially disadvantaged spouse,
may request that the court award spousal maintenance.
If you would like to work with one of our experienced Attorneys, please
call OWENS & PERKINS at
480.630.2464 to schedule your free 30 minute consultation.