In a proceeding for dissolution of marriage or legal separation the court may grant a spousal maintenance order for either spouse if it finds that the spouse seeking maintenance:
- Lacks sufficient property, including property apportioned to the spouse, to provide for that spouse's reasonable needs AND/OR
- Is unable to be self-sufficient through appropriate employment or is the custodian of a child whose age or condition is such that the custodian should not be required to seek employment outside the home or lacks earning ability in the labor market adequate to be self-sufficient AND/OR
- Contributed to the educational opportunities of the other spouse AND/OR
- Had a marriage of long duration and is of an age that may preclude the possibility of gaining employment adequate to be self-sufficient.
ARS § 25-319(A). If one or more of the factors listed above has been satisfied, then spousal maintenance is appropriate. In order to determine the amount and duration of the award, without regard to marital misconduct, the court shall consider the following:
- The standard of living established during the marriage.
- The duration of the marriage.
- The age, employment history, earning ability and physical and emotional condition of the spouse seeking maintenance.
- The ability of the spouse from whom maintenance is sought to meet that spouse's needs while meeting those of the spouse seeking maintenance.
- The comparative financial resources of the spouses, including their comparative earning abilities in the labor market.
- The contribution of the spouse seeking maintenance to the earning ability of the other spouse.
- The extent to which the spouse seeking maintenance has reduced that spouse's income or career opportunities for the benefit of the other spouse.
- The ability of both parties after the dissolution to contribute to the future educational costs of their mutual children.
- 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.
- 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.
- Excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community, joint tenancy and other property held in common.
- The cost for the spouse who is seeking maintenance to obtain health insurance and the reduction in the cost of health insurance for the spouse from whom maintenance is sought if the spouse from whom maintenance is sought is able to convert family health insurance to employee health insurance after the marriage is dissolved.
- All actual damages and judgments from conduct that results in criminal conviction of either spouse in which the other spouse or child was the victim.
ARS § 25-319(B). If both parties agree, the maintenance order and a decree of dissolution of marriage or of legal separation may state that its maintenance terms shall not be modified.
When is a non-modifiable spousal maintenance award modifiable?
Most spousal maintenance awards are non-modifiable. Typical language in a decree will read: “The spousal maintenance to Wife is non-modifiable and shall terminate only upon the death of either spouse or Wife's remarriage.” A non-modifiable award may be modified; however, if either party encounters extraordinary circumstances, such as disability, not contemplated by the parties and which has an extraordinarily affect on the payor's ability to fulfill his or her spousal maintenance obligation. Waldren v. Waldren, 131 P.3d 1067 (Ariz. App., 2006).
Once the threshold requirements of ARS § 25-319(A) are met, it is well established that the receiving spouse is entitled to an award of spousal maintenance to approximate his or her needs in accordance with the previous standard of living that the parties had during their marriage. This means that spousal maintenance is not precluded if the receiving spouse is employed, even if that employment is sufficient to pay for basic needs. Rather, those basic needs must be interpreted in light of the standard of living achieved during the marriage.
The standard of living is not as determined as an average of standard of living during the entire marriage. Rather, the courts pay particular attention to the years immediately preceding the petition for dissolution especially where it appears the payor spouse is on an upward trajectory of income and earning ability. This does not mean that the receiving spouse is entitled to a standard of living where the parties consistently lived well beyond their means.
Public policy favors a fixed term of spousal maintenance, which, under appropriate circumstances, can provide an incentive to the receiving spouse to use diligence for procuring the requisite training and skills so as to become self-sustaining. While recognizing the goal of economic independence, the courts balance this principle with a realistic appraisal of the probability that the receiving spouse would be able to support him or herself in some reasonable approximation of the standard of living established during the marriage, especially when the marriage was of long duration (20 years of more) and the receiving spouse had a scant work history. If independence is unlikely to be achieved, an award of indefinite spousal maintenance may be appropriate.
The courts have not shown any hesitation in imputing income capacity to the payor spouse even in light of drastically reduced earnings. For example, early retirement is not a basis to reduce spousal maintenance.