Articles
How is Spousal Maintenance Determined?
By: Mitchell
Reichman
Nothing is more difficult than
predicting what a judge will decide is the appropriate spousal
maintenance award on any given set of facts. This uncertainty
can be traced to the statutory factors that a judge is compelled to
consider to decide if a person is entitled to receive spousal
maintenance and if so, the amount and duration of the award.
The factors, as set forth in A.R.S. ยง25-319(B) and its subparts,
are very subjective and allow the judge significant latitude.
They include such things as the standard of living during the
marriage, the emotional condition of the spouse seeking
maintenance, the contribution of the spouse seeking maintenance to
the earning ability of the other spouse, any reduction of income or
career opportunities for the benefit of the other spouse, the
ability to contribute to future educational costs of their mutual
children and whether there have been excessive or abnormal
expenditures, destruction, concealment or fraudulent disposition of
property during the marriage. Over the years, the general
dissatisfaction with this uncertainty has prompted the promulgation
of "guidelines" to assist litigants and judges seeking to fashion
or agree upon appropriate awards of spousal maintenance.
However, the guidelines that have been in place from time to time
were all ultimately thought to be flawed in one respect or another
and presently there are no spousal maintenance guidelines at all in
the State of Arizona. Reliance on the recently disavowed
"spousal maintenance guidelines" is therefore misplaced and anyone
relying on those guidelines to argue for any given amount or
duration of spousal maintenance is misguided.
The spousal maintenance analysis is a balancing test. For
the person seeking spousal maintenance, it is a question of his or
her reasonable needs given the standard of living during the
marriage and his or her ability to meet those needs independently
from earnings and/or income from property being awarded to them in
the dissolution of the marriage. For the spouse who is being
asked to pay spousal maintenance, it is a question of that person's
earning ability, his or her capacity to meet their own needs while
also contributing to the expenses of the spouse seeking
maintenance. While this balance may be simple to express, its
application is often difficult. In many marriages the
community, while intact, tends to spend all or almost all of the
income being generated in the household. When that household
is divided and another layer of living expenses is added due to the
separation of the parties, that same stream of income which once
supported an intact household cannot support the two separate
households in the same manner. There simply isn't enough
money to meet these additional expenses. If this is the case,
resisting the inevitable reduction in the lifestyle that both
spouses will typically experience leads to conflict.
Consequently, the parties' inability to agree on an appropriate
amount and duration of spousal maintenance is often the primary
reason for parties to "go to trial" and seek resolution of this
conflict by asking the judge to decide these issues. Whether
you are the spouse seeking maintenance or the one defending against
such a claim, it is critically important to be prepared to make the
most persuasive presentation possible given your particular facts
and circumstances. This is one area where the assistance of
an experienced and skillful lawyer can make a significant
difference for you.
About the author: Mitchell
Reichman is an attorney with the Phoenix law firm of Jaburg Wilk. He is a
Certified Specialist in Family Law/Divorce by the State Bar of
Arizona Board of Certification and a Superlawyers in family
law. Mitch is experienced lawyer in representing clients in
high conflict divorces with substantial assets. He can
be reached at 602.248.1000 or mxr@jaburgwilk.com.
This article is not intended to provide legal advice and
only relates to Arizona law. It does not consider the scope
of laws in states other than Arizona. Always consult an
attorney for legal advice for your particular situation.
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