By: Max Nicholas Hanson, Esq.
If the Court has found that one of the parties qualifies for and is eligible
to receive an award of spousal maintenance as we discussed in depth in
part one of this four part blog series, then the Court has to examine
the facts and circumstances of the case under
all the relevant factors, including those specifically set forth in A.R.S.
§25-319(B) to determine the proper amount of spousal maintenance
and how long it will last. Although Arizona is a “no fault”
divorce state and the statute itself indicates that the amount and duration
of spousal maintenance shall be determined “without regard to marital
misconduct”, you will see that such misconduct or forms of it may
and will be considered by the Court in the context of awarding spousal
Under A.R.S. §25-319(B), there are thirteen factors that the Court
must specifically address and apply to the facts and circumstances of
the case before it can determine the amount and duration for any award
for spousal maintenance.
1. “The standard of living established during the marriage” This factor is the one people always think of, the one factor where it
goes to the “lifestyle” I’ve become accustomed to. Keep
in mind that this is only
one of many other factors that the Court is obligated to consider.
2. “The duration of the marriage” Looking at this factor along with the factors listed in Nos. 3, 5, 6, 7
and 9, all of these are substantially similar to the same factors and
determinations that the Court made in even determining whether that spouse
was eligible to receive an award of spousal maintenance. It seems very
repetitive, but a good way to think about the difference is this: under
subsection (A) of the statute the Court was looking more generally at
these factors to see if the spouse met the
minimum threshold to proceed with a spousal maintenance claim, here the Court
is actually getting to the specifics and “numbers” and running
actual calculations in connection with amounts and length of time needed
for spousal support so it is supposed to be much more in-depth and specific.
3. “The age, employment history, earning ability, and physical and
emotional condition of the spouse seeking maintenance”
4. “The ability of the spouse from whom maintenance is sought to
meet that spouse’s needs while meeting those of the spouse seeking
maintenance” This provision can be key and vitally important for those spouse who are
the ones that are going to pay the maintenance. Especially in cases with
two low income spouses or older spouses that are on verge of retirement
age, this provision may carry much more weight than others, as regardless
of the need of one party for financial assistance, the other party has
to be able to afford to actually pay that support.
5. “The comparative financial resources of the spouses, including
their comparative earning abilities in the labor market”
6. “The contribution of the spouse seeking maintenance to the earning
ability of the other spouse” As stated in the prior blog post, it is not only the contributions to the
other spouse’s education that the Court looks at, but also the efforts
made to allow that spouse to advance in their career or take advantage
of certain opportunities which encompasses both this factor and No. 7 below.
7. “The extent to which the spouse seeking maintenance has reduced
that spouse’s income or career opportunities for the benefit of
the other spouse”
8. “The ability of both parties after dissolution to contribute to
the future educational costs of their mutual children” Again, this is another key provision for those expected to pay the spousal
maintenance award. Often, when the parties have older children going to
or currently in college, the paying spouse is one that will be providing
the financial support to the children for tuition, room and board, and
other college expenses – an award of spousal support can take away
from a paying spouse’s ability to continue to afford to pay these
expenses for the parties’ children.
9. “The financial resources of the party seeking maintenance, including
marital property apportioned to that spouse, and that spouse’s ability
to meet that spouse’s own needs independently” Again, similar to the analysis in A.R.S. §25-319(A)(1), if the Court
anticipates that the party seeking spousal support has or will receive
significant assets at the conclusion of the divorce proceedings, especially
if they are significant enough to allow an income from investment or that
they may defray a substantial amount of living expenses, then this factor
may serve as justification to limit both the amount and duration for any
award of spousal maintenance.
10. “The time necessary to acquire sufficient education or training
to enable the party seeking maintenance to find appropriate employment
and whether such education or training is readily available” If a party has a plan on what field they are going to establish a career
in or have plans for further education or obtaining a decree in a specific
field with financial assistance from the other spouse, this factor can
go a long way in the Court’s determination as to the amount and
duration that a spousal maintenance award needs to be in order to finish
the training and get established in this career.
11. “Excessive or abnormal expenditures, destruction, concealment
or fraudulent disposition of community, joint tenancy and other property
held in common” As stated above, this provision looks at certain types of “bad”
behavior or misconduct by a spouse, usually the paying party, and the
Court can use this type of financial misfeasance in fashioning an award
of spousal maintenance. For example, if the marital property has been
greatly reduced because Husband has a gambling problem or spent a boatload
of money on his mistress, this provision can be used to justify a larger
amount of spousal maintenance awarded to Wife to “make up”
for Husband’s waste of those assets that she might have been entitled
12. “The cost for the spouse who is seeking maintenance to obtain
health insurance and reduction in cost of health insurance for the spouse
from whom maintenance is sought if the spouse from who maintenance is
sought is able to convert family health insurance to employee health insurance
after the marriage is dissolved” We are all familiar with the rising costs of health care in this country
and the cost of obtaining health insurance, even with Obamacare now, can
be substantial especially for parties that are unemployed for a number
of years and have significant health issues. This provision specifies
that that cost is a direct consideration in determining the amount and
duration of a spousal maintenance award.
13. “All actual damages and judgments from conduct that results in
criminal convictions of either spouse in which the other spouse or child
was the victim” The actual use and implementation of this provision is fairly rare. It
usually only applies to situations in which domestic violence and/or criminal
damage has occurred – as it states it would be calculated from actual
damages such as medical bills, repair or replacement of damaged property, etc.
Keep in mind that the Court has wide discretion in applying the facts of
your case to these factors and in determining which of these factors weighs
more or have greater significance than other factors that may be present
– in other words, your judge can decide that some factors are more
important than others and the factors are not necessarily treated equally.
Additionally, as A.R.S. §25-319(B) states, the Court is required
all relevant factors which includes but is not limited to these thirteen factors; the Court
can certainly look at other facts and circumstances in your case that
may not be on this “list” but which the Court deems as relevant
to its determination for the amount or duration of spousal maintenance.
An experienced attorney who has dealt with this issue at trial before
and can tailor your argument to bring your best facts to the forefront
for the judge and that can mean all the difference in obtaining the best
outcome in your case.
So, now let’s say a spousal maintenance award has been entered in
your case for a certain amount and over a certain time period. We’re
done, right? It is for the amount ordered and ends when that order says
it does, right? Not so fast – spousal maintenance awards can always
be modified, unless the parties have specifically agreed that award is
non-modifiable in amount and/or duration. In part 3 of this series, we
will examine what is entailed in modifying a spousal maintenance order.
If you would like to work with one of our experienced Attorneys, please call
OWENS & PERKINS at480.994.8824 to schedule your free 30 minute consultation.