THE AURIT CENTER

The Comprehensive Guide
To Spousal Maintenance In Arizona

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The Comprehenisve Guide to Spousal Maintenance in Arizona

At The Aurit Center for Divorce mediation we understand that Spousal Maintenance is a sensitive topic. We believe in providing you with all of the information you need to make important decisions regarding Spousal Maintenance. In mediation, you and your spouse can deviate up or down from the amount the courts would likely determine to be the amount of spousal maintenance.

We will help you understand the law, to use as a reference point as you make important decisions. In mediation, you and your spouse will have the flexibility you need to reach unique agreements that best meet both of your needs.

You can speak with a Mediation Coordinator, who can answer your questions about the mediation process, by calling 480-799-7999 or emailing them via the link below. You can schedule a free online consultation at any time.

Consults are informational only and they do not begin any divorce or legal separation process. We hope you find this information helpful and we appreciate your feedback, thoughts, ideas and questions.

What is Spousal Maintenance?

Spousal Maintenance, also referred to as Spousal Support or Alimony, refers to payment by one spouse to the other spouse following a divorce or legal separation. Arizona takes a Needs-Based Approach to determining spousal maintenance. Spousal maintenance is designed to limit any negative financial impact of divorce by providing financial support, for a designated period of time, to a spouse who cannot meet their reasonable expenses on their own. Payments are ordered only for as long as the spouse needs them. The goals of spousal maintenance are to create a bridge to financial independence for both spouses as soon as possible, and to encourage financial independence by the party receiving maintenance.

It is important to note that spousal maintenance is a separate consideration and is not a substitute for or supplement to Arizona child support payment.

How does Spousal Maintenance Work?

Not every divorce or legal separation involves spousal maintenance. In mediation, parties may mutually agree on the amount and duration of spousal support, or by settling a litigated case outside of court, before a judge renders an order.

Determination of Spousal Maintenance Eligibility in Arizona involve a two-step inquiry process:

Step One: Entitlement

Entitlement refers to the determination as to whether or not one spouse is entitled to or eligible to receive spousal maintenance. In a litigated case, the court only considers the circumstances of the spouse who is requesting spousal support. If a spouse satisfies at least one of the conditions of entitlement (described below), the inquiry moves to the second step.

Step Two: Amount & Duration

If the court determines a spouse is entitled to receive spousal maintenance, it then considers the relevant circumstances of both parties to determine in what amount and for what duration. Although a spouse may be entitled to maintenance under Step 1 of the inquiry, a court may nevertheless decide that an award of $0 is appropriate after considering the factors relevant to the second step of inquiry.

Eligibility for Spousal Maintenance

A spouse qualifies for an award of spousal maintenance after a divorce or legal separation if they meet one or more of the following criteria, A.R.S. § 25-319 (A):

  1. lacks sufficient property to provide for his/her reasonable needs;
  2. is unable to be self-sufficient through appropriate employment, or is the custodian of a child whose age or condition prevents the spouse from working outside the home;
  3. made significant financial or other contribution to the education, training, vocational skills, career or earning ability of the other spouse;*
  4. had a marriage of long duration and is of an age that may prevent the spouse from gaining employment adequate to be self-sufficient; or
  5. has significantly reduced that spouse’s income or career opportunities for the benefit of the other spouse.

Mediation provides a platform for spouses to develop their own agreements. In mediation, spouses maintain control of the agreements. In litigation a judge makes the final determinations. Even in cases involving high conflict, The Aurit Center’s professional family mediators successfully guide spouses to agreements that best support their unique needs.

Mediation is distinguished from litigation in terms of who has control of the agreements.

“In mediation, spouses maintain control of the agreements.
In litigation a judge makes the final determinations.”

Amount and Duration of Spousal Maintenance

After the courts determine there is a need for spousal maintenance, in litigated cases, they will determine the amount and duration of the spousal maintenance. Whereas, in mediation, spouses work to find a mutually-agreeable amount and duration of spousal maintenance. The Arizona courts consider the following factors:

  1. standard of living during the marriage;
  2. length of the marriage;
  3. age, employment history, and earning ability of each person;
  4. ability to meet the needs of each person;
  5. the comparative financial resources of the spouses;
  6. contributed to the earning ability of the spouse by each person;
  7. extent to which they reduced their income or career opportunities for the benefit of the other spouse, for each person;
  8. ability to contribute to the future educational costs of their mutual children after divorce;
  9. financial resources of the spouse seeking maintenance;
  10. the time necessary for the spouse seeking maintenance to acquire the education or training needed to find suitable employment, and whether such education or training is readily available;
  11. excessive or abnormal expenditures during the marriage;
  12. cost of health insurance for the spouse seeking maintenance; and
  13. actual damages resulting from the criminal acts (criminal conviction) of either spouse on the other spouse or child.

In court, it is up to each individual judge to determine what factors contribute to the amount and duration of spousal maintenance awarded.

“In mediation, spouses work to find a mutually-agreeable
amount and duration of spousal maintenance.”

The Mediation Approach

It is normal to want to know what you can expect to pay or receive in spousal maintenance and for what duration, so you can plan your finances accordingly. In mediation, we take a comprehensive view when approaching this sensitive subject and we help you to explore and understand your options. Regretfully, as discussed above, spousal maintenance law in Arizona does not provide much guidance.

“We help you to explore and understand your options.”

Generally, the person requesting alimony has a shortfall in terms of the funds they need each month to pay for their expenses. For the person paying spousal maintenance, there is traditionally an excess of funds after they have paid for their expenses.

In mediation, we help each of you to prepare a Monthly Budget Worksheet. This allows each spouse to reasonably, accurately, and realistically determine their anticipated expenses after divorce. During a series of budget discussions, guided by your mediator, you will be able to clarify and balance expenses in a mutually-agreeable way.

For example, let’s look at a situation where divorcing parents have a daughter who participates in gymnastics. The costs associated with this extracurricular activity are $300 per month. Dad assumes he is paying this expense after the divorce and includes it in his budget. Mom also assumes she is paying 100% off this expense and includes it in her budget. When they review the budgets together with the mediator, they see overlap and discuss how this expense will actually be paid. Dad agrees to pay 100% of this expense. Then, the figures are adjusted keeping Dad’s overall expenses the same, but reducinng Mom’s by $300 per month. If Mom’s previously had a monthly shortfall of $1000, she now has only a $700 shortfall.

By creatively working toward agreements regarding expense division, and by also agreeing on how assets are best divided, the benefit to both spouses is maximized and accomplishes the best possible agreements regarding spousal support. The result is that both Mom and Dad are as financially stable and secure as possible.

“…the benefit to both spouses is maximized…”

Mediation encourages creativity when establishing how and when spousal support will be paid to create financial stability for both spouses. Spouses can also agree that some payments will be made directly to certain vendors instead of to the other spouse. Lump-sum Spousal Maintenance is a consideration that can benefit both spouses.

The Litigation Approach

In litigation, there is no set formula to determine the amount or duration of support and so it is determined at the courts discretion.

The courts must conduct a full review of all spousal support factors outlined by law and there is no way of accurately predicting what a judge will order. There is virtually no consistency among judges, or even among individual judge’s orders.

Perhaps the most important variable for those in litigation is the assigned judge. Studies have shown that when multiple judges were asked to award spousal maintenance given the same fictitious facts, spousal maintenance awards ranged in responses from no award of spousal maintenance to a lifetime award of spousal maintenance and everything in between.

“there is no way of accurately predicting
what a judge will order.”

Types of Spousal Maintenance

There are many forms of alimony in Arizona, ranging from those with set terms of duration to those with staggered plans that lower the amount of support over time. During the divorce process itself, a judge in Arizona may award:

  • Temporary Spousal Maintenance
  • Permanent Spousal Maintenance
  • Rehabilitative Spousal Maintenance
  • Limited or Reimbursement Spousal Maintenance

Temporary Spousal Maintenance or “pendente lite,”

—meaning, “pending the final divorce.” This award established spousal maintenance during divorce proceedings to keep both parties financially stable during the process.

In mediation, we discuss Temporary Spousal Maintenance agreements when clients are financially separating during the divorce process and need financial stability via support payments. Note that in mediation, instead of an order for temporary spousal support being unilaterally mandated by a judge (which both spouses may be very unhappy about), spouses reach agreements together about the amount and duration of temporary spousal support with the help and guidance of a skilled mediator.

Although one spouse may pay a lump sum spousal maintenance award, it is more commonly paid as a monthly amount for a specific length of time.

Permanent Spousal Maintenance

—meaning there is no established deadline. This type of spousal maintenance is becoming increasingly rare, even after longer marriages. Arizona courts tend to look at maintenance as rehabilitative. The courts generally only award permanent maintenance to spouses who are unable to become self-supporting — due, for example, to age or disability — and even then, only after long marriages.

Rehabilitative Spousal Maintenance

—in other words, spousal maintenance to allow a spouse to find a job or obtain training and education to improve employment prospects. In longer-term marriages, depending on the circumstances, this can still mean longer-term awards.

Limited or Reimbursement Spousal Maintenance

—is awarded by the courts when a spouse contributed to the advanced education and earning capacity of the other spouse.

In mediation, spouses may mutually agree to provide one spouse with long-term or permanent maintenance, as long as both agree to this form of payment structure.

Termination of Spousal Maintenance

Generally, under Arizona law, spousal maintenance terminates upon:

  • the remarriage of the spouse receiving support;
  • the death of either spouse; and/or
  • the termination of the spousal maintenance term.

Although this is the default under Arizona law, in mediation, spouses may mutually agree to more or fewer termination factors. Sometimes, the creative terms developed in mediation regarding termination of support can make the difference between stalemate and full agreement. For example, a payor may agree to a longer duration than the payor believes is most fair, in exchange for an added termination factor that upon the recipient earning income of $60,000 or more per year, spousal maintenance will terminate.

Paying Spousal Maintenance

Alimony payments are traditionally ordered to be made through an Income Withholding Order from the paying spouse’s paycheck to the Arizona Support Clearinghouse. This means that the court’s order directs the employer of the spouse to deduct the amount of spousal maintenance directly from their paycheck, and then the employer sends the money to the Clearinghouse, who then sends the money to the receiving spouse. Self-employed or unemployed spouses must make spousal maintenance payments directly to the Clearinghouse.

In mediation, you can mutually agree to have payments made via automatic direct deposit. Some spouses prefer this method to avoid involvement of the state in the payment of support or for the sake of convenience.

“Our mediators will help you to reach
unique agreements that work best for both of you.”

For example, where by agreement, the amount of spousal maintenance changes during a short period of time, the effort to record and institute those changes may be reason enough to agree that payments transfer directly from the payor’s bank account to the recipient’s bank account automatically on the same day each month.

Each situation is different and there are numerous opinions about the safest and most reasonable process. Our mediators will help you to reach unique agreements that work best for both of you.

Are Alimony Payments Taxable?

The 2017 Federal Tax Law changed the tax liability of spousal maintenance payments.

When a divorce or legal separation is finalized (stamped by the court) before December 31, 2018, spousal maintenance payments will be tax deductible for the payor and taxed as income for the recipient, unless otherwise agreed. Tax deductibility to the payor of spousal maintenance is grandfathered in regardless of the length of spousal maintenance, so long as the divorce or legal separation is final prior to December 31, 2018, meaning that payments will be deductible to the person paying support and taxed as income for the person receiving support.

However, if a divorce or legal separation is finalized after December 31, 2018, spousal maintenance payments are not tax deductible to the payor and not taxed as income to the recipient.

Modification of Spousal Maintenance

In mediation, we provide services for former spouses requesting changes to their original divorce decree, known as post-decree modification. In post-decree mediation meetings, spouses may mutually agree to modify spousal maintenance payments, even without a substantial and continuing circumstance.

Parties may mutually agree, in mediation, that spousal maintenance will be non-modifiable, meaning that the amount or duration can never be changed under any circumstances.

In most cases, if a spouse chooses to waive spousal maintenance in mediation or litigation, they forever forfeit their right to spousal maintenance. However, in mediation, by agreement, this can be altered.

Upon forfeiting spousal maintenance, only a mutual agreement by the parties at a later date can result in a new spousal maintenance agreement being enforced. Otherwise, a court may not modify spousal maintenance unless an original order contained an award of spousal maintenance.

Arizona law requires that there be a substantial and continuing change in circumstances in order to modify spousal maintenance. Whether or not a qualifying change has occurred is determined by comparing the circumstances of the spouses at the time of the entry of the spousal maintenance order to the court as compared to the to the circumstances of the former spouses at the time of a modification request. In other words, changed circumstances alleged must be proven by a comparison of the circumstances existing at the time of the original divorce and the current circumstances. In court, the burden of proving changed circumstances is on the party seeking modification.

Spousal Maintenance Modified Due to Loss of Income

Perkins v. Perkins (AZ Court of Appeals Div. One) addressed the question of changed circumstances for the purpose of modifying a spousal maintenance order and what constituted ‘continuing‘ (as opposed to temporarily) changed circumstances.

The Perkins case tells us:

  • failure to negotiate and/or recognize the reality of the circumstances will be considered unreasonable;
  • failure to make appropriate disclosure will be considered unreasonable; and
  • a single factor is sufficient to justify modification of a spousal maintenance order.

Are Prenuptial Agreements Regarding Alimony Enforceable in Arizona?

A couple may choose to limit or eliminate spousal maintenance through a Prenuptial Agreement, which is an optional contract signed by the parties before marriage. Upon divorce, the court may uphold the couple’s agreement and disqualify a spouse from receiving spousal maintenance when the court finds the premarital agreement is valid. Arizona law does provide an exception for the situation where a spouse would become eligible for public assistance or welfare benefits absent support. If this is the case, the court may decline to uphold an otherwise valid prenuptial agreement.

Spouses often follow the prenuptial agreement. However, spouses may also, after understanding the implications of the prenuptial agreement, agree to do something different.

For example, a premarital agreement signed 20 years prior to the decision to divorce may read that “in the event of divorce, neither party shall pay the other spousal support.” At the time of the premarital agreement signing, the spouses may have had no children and Wife may have been earning more income than Husband. However, soon after marriage, the spouses may have had children, and a mutual decision may have been made that Wife work within the home and be the primary caregiver for the parties’ children. As a result, Wife remained unemployed for nearly 18 years. Today, the spouses can agree to share equal time with their three children, but they want to address the issue of the Wife only being capable of earning minimum wage, while Husband is earning $80,000 per year. In mediation, they may agree to reasonable payments to allow financial stability for both of them in spite of the premarital or prenuptial agreement stating that no spousal maintenance will be paid.

Spousal Maintenance Enforcement

Judgments for spousal support in Arizona are strictly enforced by the court and are non-dischargeable in bankruptcy. If a spouse fails to pay court-ordered maintenance, there are options for enforcement actions through the court.

For example, the court can:

  • place a lien on the property of the spouse defaulting on payments,
  • seize the tax returns of said spouse,
  • collect through an income-withholding order, or
  • levy against a bank account of said spouse.

The deadline to request a judgment for unpaid support is three years after the order has terminated. After securing a judgment, it need not be renewed to remain in full force and effect. Further, failure to pay the judgment is a class 1 misdemeanor.

Conclusion

We hope this article has been illuminating as to the factors considered when determining spousal maintenance in Arizona. As we have discussed, the guidelines apply in both litigation and mediation, however, mediation allows for more productive conversations that can result in deviations that better reflect what both spouses believe is most fair.

The skilled professional mediators at The Aurit Center will help you have productive conversations that will help you reach the best possible agreement for both of you moving forward.

The Arizona Support Guidelines, while at times complicated, create a general guide for understanding the factors that may lead to a spousal maintenance award. Regretfully, in litigation, the guidelines leave a great deal to interpretation based on the judge presiding over the case.

Published Date: April 5, 2022

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