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.