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Spousal Maintenance

Everyone has heard of “alimony.”

That term actually applies to an order under a different theory of law than is currently in place. Alimony was somewhat punitive and was derived under an idea of wrong-doing. Since Arizona became a “no-fault” divorce state, the punitive nature payments to an ex-spouse have been removed. Payments to an ex-spouse can be ordered under the Arizona Revised Statutes, A.R.S. §25-319 et seq. That statute provides a framework for the court to order payment of maintenance to a former spouse. The payments are usually called “spousal maintenance.”

Spousal maintenance can be sought by either spouse regardless of sex or whether you are the petitioner or respondent. When considering spousal maintenance, you should review the provisions of the law with your attorney. You may be entitled to maintenance or you may be exposed to a possible claim for spousal maintenance. If one of the divorcing parties has historically has not worked during the marriage, then this would give rise to a claim for spousal maintenance. If one of the spouses is disabled or otherwise prevented from working, spousal maintenance may be implicated. In addition, the contributions made by a spouse during a marriage are considered. The length of the marriage will affect the duration of any spousal maintenance order. All of the issues described here are gender-neutral and it doesn’t matter if it is the husband or wife making such a claim.

You must include a claim for spousal maintenance in your initial petition. If it isn’t asked for, you cannot later raise the issue. In addition, if the parties negotiate an amount and duration for spousal maintenance, they can opt to have a “lump-sum, non-modifiable” order. Such an order would allow both parties to know exactly what the amount and duration were. If the parties argue the issue to the court, the resultant order (if the court chooses to award maintenance) will always be modifiable in both duration and amount. That fact usually gives both parties reason to consider reaching an agreement rather than going to trial. The “bird-in-hand” being better than “two birds-in-the-bush” idea prevails here. Your attorney will be best able to advise you on this issue because it will always be very situational.

Spousal Maintenance is not punishment. The theory behind Spousal Maintenance is that it would be unfair to end a marriage and leave one party unable to provide for their own “reasonable needs.” However, the provision is only for the person’s reasonable needs. A large part of the case regarding spousal maintenance will be determining exactly what the needs are and if they are reasonable. Further, you will be asked about how long it will take the receiving spouse to become able to provide for those reasonable needs through their own means. That will result in the amount (the reasonable needs) and the duration (how long the amount will be paid). Your attorney will have addressed this issue many times and can give you a good idea of approximately what the judge will order. However, no attorney can tell you exactly what a judge will order because it is not a fixed number. There are no “spousal maintenance calculators” similar to the child support calculators. Unlike child support, spousal maintenance is not based upon a chart or formula. This fact can lead to some very different ideas of what is fair and reasonable under your circumstances. The disputes are often very heated and hard for the parties to resolve themselves. If you expect to litigate the issue of spousal maintenance, you should obtain legal representation. Your attorney can negotiate such issues and will be insulated from the personal issues you may be experiencing with your spouse.

Spousal Maintenance is all about the person being able to meet their reasonable needs after the divorce. In the event that the ex-spouse is awarded sufficient property to provide for their reasonable needs, then spousal maintenance won’t be appropriate. Sometimes, it will be a better idea to give your ex-spouse a larger property settlement to enable them to meet their own reasonable needs and avoid the spousal maintenance issue altogether. Again, this is an issue your attorney will be able to advise you on.

Lastly, Spousal Maintenance is pre-tax money. The paying spouse does not pay income taxes on such amounts. The receiving spouse must pay those taxes. If you are receiving Spousal Maintenance, you will need to either send in tax payments or insure you have sufficient funds set aside to make payment when you file your tax return. For the paying spouse, the pre-tax nature can be a benefit. If you were ordered to pay $1,000.00 per month in Spousal Maintenance, your net take-home pay will not go down $1,000.00. That’s because you will not be paying the taxes on that $1,000.00. Your pay will only go down by the amount minus any income taxes that would have been withheld on that amount. Also, the result of Spousal Maintenance deductions will be that your gross taxable income will be reduced and you may derive a benefit at tax time. There are some legal considerations involved if you reduce the spousal maintenance over time, but your attorney will advise you so as to avoid any IRS “recapture” of taxes. The complex nature of the whole Spousal Maintenance issue can best be addressed through legal counsel. If you are seeking spousal maintenance or your spouse is seeking it from you, you want to have an attorney on your side!