Sacks Tierney P.A.

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Spousal Maintenance

Am I entitled to spousal maintenance?  •  Are spousal maintenance payments taxable?  •  Is spousal maintenance modifiable?  •  What happens if my spouse doesn't pay his or her court-ordered spousal maintenance?

1. Am I entitled to spousal maintenance?

The goal of spousal maintenance is to help the spouse who has not been the primary wage earner to become self-sufficient, and it is awarded on a case-by-case basis. Generally, spousal maintenance is temporary and not ordered for an indefinite period of time. Courts will enter an award for spousal maintenance only if the spouse seeking spousal maintenance meets at least one of the following criteria:

  • The spouse lacks sufficient property, including property awarded to the spouse in the divorce, to provide for his or her reasonable needs.

  • The spouse 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.

  • The spouse contributed to the educational opportunities of the other spouse.

  • The spouse had a marriage of long duration and is of an age that may preclude the possibility of gaining employment adequate to be self sufficient. (A.R.S. § 25-319)

It is important that you are prepared to prove, through evidence and testimony, that you cannot meet your reasonable needs without your spouse’s support. Once you are able to show the court that at least one of the above criteria has been met, the court has broad discretion to determine the amount and duration of the spousal maintenance award. Courts may consider several factors when determining the amount and duration of the award:

  • 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 the 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; and/or

  • 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.

2. Are spousal maintenance payments taxable?

Spouse maintenance is considered taxable income to the receiving spouse and tax deductible by the paying spouse.

3. Is spousal maintenance modifiable?

Spousal maintenance is modifiable unless otherwise agreed by you and your spouse. Similar to a modification of child support, the spouse seeking modification must show a “substantial and continuing” change in circumstances, such as change in income, loss of a job, or addition of health insurance coverage.

4. What happens if my spouse doesn't pay his or her court-ordered spousal maintenance?

Spousal maintenance most likely will be deducted from your spouse’s pay check. If your spouse is self-employed, the court may order that he or she make payments directly to the Arizona Support Payment Clearinghouse rather than through an Income Withholding Order. If your spouse becomes delinquent on his her spousal maintenance payments, you may seek a judgment for arrearages (past due support payments) or, if you can show that your spouse knowingly and willingly refused to make the payments, you may file a contempt action in court. The court may impose penalties on the non-paying spouse, such as garnishing the spouse’s wages and bank accounts, attaching liens on property or seizing assets, suspending a professional license or ordering that the spouse serve jail time.