Alimony in Arizona | Arizona Alimony Laws
What is Alimony or Spousal Maintenance in Arizona?
Spousal maintenance in Arizona will not necessarily be granted in every divorce or legal separation case. Alimony in Arizona is a delicate subject, which will affect whether the person receiving alimony will be able to support themselves, as well as whether the person ordered to pay spousal maintenance will be able to pay his or her living expenses.
In Arizona there are three forms of spousal maintenance:
- Permanent Alimony: This type of alimony is granted when spouses are unable to appropriately support themselves and there is no indication that he or she will ever be able to obtain work in the future. This typically occurs when someone has a significant disability;
- Rehabilitative Alimony: Rehabilitative spousal maintenance is awarded when a spouse is unable to support themselves at the current time, but will be able to do so if he or she were to attain additional education, work experience or training that would enable him or her to support themselves in the future; or
- Compensatory Alimony: Compensatory spousal maintenance may be awarded when one spouse has contributed to the educational opportunities of the other spouse. For example, if a spouse had supported the family throughout the marriage to allow the other spouse to obtain education or further his or her career.
It is important to know that certain eligibility requirements must be met in order for a spouse to receive spousal maintenance in Arizona. These requirements include:
- The spouse lacks sufficient property to provide for his or her reasonable needs;
- Is unable to support themselves through appropriate employment;
- Must care for a child who is of such a young age that he or she should not be expected to work;
- Contributed to the educational opportunities of the other spouse;
- Had a marriage of long duration; or
- Is of an age that precludes a spouse from finding appropriate employment.
Do You Have to File for Divorce to Receive Alimony in Arizona?
Many people ask if they must file for a divorce or legal separation to be able to receive alimony in Arizona. Yes, the court only has statutory authority to award Alimony in Arizona if a Petition for Divorce or Petition for Legal Separation has been filed by one of the spouses.
Are You Entitled to Alimony in Arizona?
A spouse requesting alimony in Arizona must first establish they are eligible for an award of alimony because they lack sufficient property to provide for their needs, is unable to obtain employment that will cover their needs or is the custodian of a child of such young age he or she should not be expected to work, had a marriage of long duration and is of such an age he or she should not be expected to return to the workforce, or contributed to the educational opportunities of the other spouse.
It is important, therefore, to look at the ability of a spouse to provide for his or her own needs, as well as the amount of property being awarded to that spouse seeking spousal maintenance. The court will also look at the income of both spouses to determine if alimony will be awarded. As a general rule, the court will consider all income received by either spouse.
There are exceptions, however, to that general rules. For example, Arizona Revised Statute Section 25-530 does not permit the court the consider certain forms of military disability payments as income for the purpose of child support or spousal maintenance. The Arizona Court of Appeals in the Swain v. Swain case held a court abused its discretion when the judge considered the husband’s military disability pay in awarding spousal maintenance to the wife in that case.
Although certain types of military disability payments may not be considered when a trial judge is determining whether to award alimony, the Arizona Court of Appeals in the Dougall v. Dougall case held that those same disability benefits may be considered by a trial judge if he or she is determining how much to order a spouse pay towards alimony arrearages.
However, some types of military disability payments are no exempt by A.R.S. 25-530 from being included in a spouse’s income for the purpose of calculating alimony (or child support). The military has what is referred to as Concurrent Disability and Retirement Pay (“CDRP”), which is not exempt. You should read our article on the Arizona Court of Appeals Decision in the In re Marriage of Priessman case for more information on why CDRP military disability payments are not exempt from consideration of family support obligations in Arizona.
Some cases may justify the parties agreeing to one spouse receiving more of the community property, either in lieu of spouse maintenance or to reduce that spouse’s need for spousal maintenance. It is critically important that the reasons an unequal division of property is being made to eliminate or reduce spousal maintenance is clearly stated in a written agreement. For more indepth information regarding such agreement, please read our synopsis of the Arizona Court of Appeals decision in the Woodside v. Woodside case.
The Arizona Court of Appeals addressed an issue that, although not considered to be an alimony issue, addressed whether a divorce court in Arizona may enforce a broken promise from one spouse to pay for the other spouse’s education after divorce when the parties previously agreed the wife would work to support the husband through school and, upon completion of his education, the husband would work to support the wife returning to school. You should read our article about the Pyeatte v. Pyeatte case for more information regarding unjust enrichment claims in an Arizona divorce case.
How Long Do You Have to Be Married to Get Alimony?
In Arizona, the duration of your marriage can have a significant impact on the courts decision regarding an award of spousal maintenance. The impact may effect both the amount of alimony awarded, as well as the number of years alimony will be paid. Generally, most Arizona judges consider marriages of less than ten years to be marriages of of short duration, which may result in a smaller amount and/or shorter duration of a spousal maintenance award.
Most Arizona judges consider marriages lasting between ten to fifteen years to be marriages of moderate duration, which may justify a large award of alimony for a greater length of time. Marriage that are fifteen years or longer are considered by most judges to be marriages in the “moderate to long term” or long term depending upon how length of the marriage when the divorce was filed. Long term marriages may result in larger awards of alimony for longer periods of time and, in some cases, may be considered for an indefinite award of alimony. However, most judges will not require the paying spouse to work beyond a reasonable retirement ago, so even indefinite awards may be terminated at a reasonable retirement ago, depending upon the circumstances.
Is Alimony in Arizona Taxable Income?
Alimony in Arizona is taxable as income by both the federal government and the State of Arizona. It is treated very similar to earned income from employment. The person receiving the alimony in Arizona is solely responsible for paying those taxes.
The party paying the alimony in Arizona, correspondingly, is permitted to deduct those spousal maintenance payments from his or her income for income tax purposes.
Does Alimony in Arizona Terminate Upon Remarriage in Arizona?
The applicable statute provides that alimony in Arizona automatically terminates upon the death of either party or the remarriage of the spouse receiving the alimony. However, you may reach a written agreement expressly providing that alimony in Arizona will not terminate upon either the death of the person paying spousal maintenance or the remarriage of the spouse receiving the alimony.
The Arizona Court of Appeals in the Palmer v. Palmer case addressed whether an agreement for alimony to be non-modifiable prevented the paying spouse from terminating alimony early because the receiving spouse remarried. The wife in the Palmer case argued that the language making the alimony non-modifiable and the omission of language stating alimony would terminate upon remarriage established the parties intended the alimony to continue even if she remarried. The Arizona Court of Appeals disagreed and found that omission of language in an alimony order that the alimony will terminate upon remarriage does not meet the requirement that the parties’ intentions to continue alimony even upon remarriage be “expressly” stated in the alimony order; otherwise, it terminates upon remarriage of the receiving spouse or the death of either party.
Do Arizona Spousal Maintenance Guidelines Exist?
The Arizona Spousal Maintenance Guidelines were originally approved by the Maricopa County Superior Court on April 19, 2000. The guidelines provided a basis upon which parties could determine a baseline amount of alimony in Arizona from which they could either increase or decrease the amount of spousal maintenance depending upon any unique factors that applied in their particular case.
The guidelines were created in response to a nationwide attempt to create a standardization of the calculation of spousal maintenance because the amounts being awarded, as well as the duration of those awards, could vary significantly depending upon the judge assigned to your case.
The Arizona Spousal Maintenance Guidelines are a mathematical formula whereby the length of the marriage is multiplied by .015. The resulting number was called the “duration factor”. That “duration factor” number was then multiplied by the difference in the parties’ incomes to arrive at a baseline spousal maintenance amount.
For example, a 15 years marriage would result in 15 x .015 = 22.5%. If one spouse earned $8,000.00 a month and the other spouse earned $3,000.00, there would be $5,000.00 difference in their incomes which, when multiplied by 22.5%, would result in a baseline spousal maintenance amount of $1,125.00 per month. The duration of the award under the guidelines would be anywhere between 30% and 50% of the length of the marriage.
It is important to note that neither the Arizona Supreme Court, nor the Arizona Legislature, drafted nor approved the Superior Court guidelines. As a result, subsequent decisions from the Arizona Court of Appeals denounced the application of the guidelines, so they are no longer in use in Arizona alimony cases.
Does Employment History Determine the Amount of Alimony in Arizona?
The court will consider evidence to determine if the spouse seeking spousal maintenance can obtain employment to provide for their own support either completely or as least in part, so long as the court does not first conclude that the spouse has a disability precluding employment, is the custodian of a young child such that he or she should not be expected to work, or is of such an elder age that he or she should not work.
The court will also consider the educational, vocational, and employment history of the spouse requesting alimony in Arizona. The court will consider evidence concerning the industries in which that spouse was previously employed, the salaries in that industry, the benefits typically provided to employees within that industry, the expected future increase in income over the coming years in that industry, and the current employment prospects in that industry to determine how much alimony should be ordered and the length of time it should be paid.
The court will also consider the income of the spouse who is being asked to pay spousal maintenance. That income can be in the form of wages, recurring investment income, or recurring gifts. Sometimes a spouse may have had to work more than full time to meet the living expenses of the parties during their marriage or a spouse may have to take a second job just to cover the expense of two households after a divorce.
Whether the court includes overtime or money earned from a second job depends upon the facts of each case. Please read our synopsis of the Arizona Court of Appeals decision in Woodside v. Woodside regarding when overtime or a second job should and should not be included in the income calculation.
There are also limitations on the inclusion of service related disability payments made to military members for the purpose of determining either entitlement to alimony or in determining if the military service member has the ability to pay alimony to the other spouse. You should read our article on the Arizona Court of Appeals decision in the case of In re Marriage of Priessman for more information regarding these limitations.
What Effect Do Children’s College Costs Have On Alimony in Arizona?
The Court does not have the authority to order either spouse to pay the expenses for a child to attend college after the child has turned eighteen (18) years old, unless the parties agree in writing to do so. However, the Court may consider the spouse’s respective ability to voluntarily pay or refusal to pay for those expenses when awarding alimony in Arizona.
Many people neglect to address this issue when testifying at trial, so it is important to ensure questions are asked regarding each parent’s intentions with respect to paying for future college expenses when addressing the issue of alimony in Arizona.
What Effect Does Standard of the Living Have upon Alimony in Arizona?
The court will consider the standard of living established during the parties’ marriage. For example, the court will consider the size, location, and monthly costs associated with the home in which the parties’ lived during their marriage. The court will consider the types of cars the parties’ drove during their marriage, as well as the clothing and jewelry and other items they purchased during their marriage.
The court will consider the types of vacations and other entertainment the parties’ enjoyed during their marriage, as well as a myriad of other facts that establish the standard of living the parties’ enjoyed. This is not to say the court will make a spousal maintenance award to keep the spouse receiving spousal maintenance at that same standard of living.
It is only one of several factors the court considers in balancing against all of the other factors the court must consider. The reason this factor is influential, yet not controlling, in determining the amount of alimony in Arizona is because in most cases the goal is to provide an amount of spousal maintenance for such amount and duration to permit that spouse to seek additional education, training and experience to be able to be financially self supportive (i.e., a rehabilitative award).
What Effect Does Excessive Spending Have on a Claim for Alimony in Arizona?
The Court will consider if either spouse spent an excessive amount of money during the marriage, as well as whether a spouse has hidden community assets or fraudulently disposed of those assets when determining whether to award alimony in Arizona. This could mean the Court could refuse to award spousal maintenance to a spouse who is otherwise unable to support themselves, but has hidden or squandered money during the marriage.
Alternatively, the Court could award a greater amount of spousal maintenance for a longer duration to a spouse who receives less community property because the other spouse has hidden assets or fraudulently disposed of community assets.
Are the Costs of Health Insurance Considered for Alimony in Arizona?
The Court must consider the cost of obtaining health insurance for the spouse seeking alimony in Arizona, as well as the cost savings of the spouse who is no longer providing or paying for health insurance for the other spouse. In many cases, this will not represent a significant factor to the Court because health insurance costs are not typically the largest of the living expenses a person may incur.
However, there are situations where health insurance costs can be significantly high when, for example, someone is older or has a serious medical condition. In such cases, some people elect to seek a legal separation, as opposed to a divorce.
This situation would occur If the paying spouse has an employer group health plan and that plan allows both spouses to remain on the health insurance plan if the parties are legally separated and not divorced. The law still allows for an award of alimony in Arizona if the parties seek a legal separation instead of a divorce.
Can You Modify or Terminate Alimony Early in Arizona?
Either party may seek to modify or terminate spousal maintenance early in Arizona if the person can demonstrate there has been a substantial and continuing change in circumstances that warrant a modification or termination of spousal maintenance. The modification of spousal maintenance, however, may depend upon whether alimony was awarded by a judge after a trial or was based upon an agreement of the parties. For example, an written agreement to pay alimony that is “incoporated but not merged” with the Decree of Dissolution of Marriage .may impact the determination whether the alimony may be modified based upon the written “contract” reached by the parties. You may want to read our summary of the Arizona Court of Appeals decision in the MacMillan v. Schwartz case that discusses this situation.
The court will set the case for trial to provide both parties with the opportunity to present their evidence.The court will, thereafter, decide whether to leave the alimony award in place, modify it, or terminate the award entirely.
You should read our article regarding the Van Dyke v. Steinle case entitled “Living Together and Spousal Maintenance” on whether a former spouse who receives alimony from her former husband and later moves in with a love interest constitutes a basis to modify alimony in Arizona or watch the following video that explains that case.
Van Dyke v. Steinle | Modification of Alimony in Arizona
When alimony is awarded in Arizona, it can be extremely difficult to terminate the alimony award. In most cases, it is not possible to terminate alimony payments. However, there are a few instances where alimony may be terminated or modified in your case. For example, if the party receiving alimony decides to get remarried, the Arizona court has a legal obligation to terminate any remaining alimony payments, unless both parties agreed the remarriage of the spouse receiving the alimony payments would not have those payments terminated upon remarriage.
A de facto marriage (a non-legalized marriage that assumes a couple is married by virtue of their cohabitation) may, however, constitute a basis for modifying or terminating alimony in Arizona. The court will evaluate whether the person receiving alimony payments has reduced his or her monthly living expenses by sharing those expenses with a new love interest by virtue of living together.
Can You Agree to Non-Modifiable Alimony in Arizona?
Alimony may be non-modifiable in Arizona if both parties agree in writing for the alimony to be non-modifiable. Both parties must agree the spousal maintenance order is non-modifiable. Since spousal maintenance terminates upon the death or either party or the remarriage of the spouse receiving the alimony automatically by law, any agreement regarding alimony being non-modifiable should address whether the parties intend to terminate spousal maintenance early upon the death of either party or remarriage of the party receiving the alimony.
Court’s will almost always refuse to modify a non-modifiable award of alimony. However, for every rule there is almost always an exception. The Arizona Court of Appeals in the McNeil v. Hoskyns case approved a trial judge’s decision to terminate early a non-modifiable award of alimony after finding the spouse who was receiving the alimony committed a fraud on the court.
After the court found the spouse to have committed a fraud on the court, the trial judge set aside the original divorce decree and the parties’ agreement regarding spousal maintenance and reissued a divorce decree denying spousal maintenance. You can read our article about McNeil v. Hoskyns to read more indepth information regarding terminating a non-modifiable alimony award.
Contact Our Scottsdale Arizona Alimony Attorneys
Contact us today or call us at (480) 305-8300 to schedule your consultation with one of our Scottsdale Arizona Spousal Maintenance Attorneys today regarding any questions you have regarding Arizona spousal maintenance laws or any other family law matter.