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 maintenance
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 to otherwise.
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 to examine 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 at(480) 630-2464 to schedule your free 30-minute consultation.