What is Spousal Maintenance?
Spousal maintenance (also known as alimony or spousal support) is a monthly payment from one spouse to another, which is designed to allow for the spouse who earns less income to establish a home and living environment on his/her own.
Spousal maintenance is used for an easier transition to becoming a single person, in certain circumstances. Spousal maintenance is designed to help a person get on his/her feet. Depending on the court order, Spousal Maintenance can last indefinitely. Spousal maintenance terminates according to the duration of the Order, upon the death of the payer or when the recipient gets re-married.
Changing a Spousal Support Order in Arizona.
Spousal maintenance is a highly litigated area of family law because there is not a mathematical formula to assist in determining the amount and duration. No guarantees can be made regarding what a Court will order for amount or duration of spousal maintenance. We often encourage parties to reach an agreement for spousal maintenance because through an agreement, parties can agree that spousal maintenance is non-modifiable in terms of amount and duration. If the issue of spousal maintenance goes to trial for the Court to decide the issue, then your spousal maintenance will be modifiable at any time the legal standard is met.
If your current spousal maintenance order is modifiable, then you can change the amount and/or the duration through an agreement with the other party or by petitioning the Court. We offer Mediation Services and we can set-up a mediation session for you and the other party to attend and attempt to reach an agreement on a new spousal maintenance order.
Is your Spousal Maintenance Order Modifiable?
Yes – If your Spousal Maintenance Order was issued by the court, your Spousal Maintenance Order is modifiable. The court does not have the legal authority to add a “no modification” clause.
No – If your Spousal Maintenance Order was made by agreement during the divorce, there is a possibility that it contains a “no modification” clause. If it does, your Spousal Maintenance Order is not modifiable.
In order for a Court to modify spousal maintenance there must be a continuing and substantial change in circumstances since the previous order.
THE COURT MAY CONSIDER MANY FACTORS TO DETERMINE IF THE CHANGE IS “SUBSTANTIAL AND CONTINUING; INCLUDING:
- A increase or decrease in salary of either parent.
- A change in child custody.
- A change in health provider, premiums, or carrier.
- The obligation of either parent to support other children.
- Any unexpected medical or education expenses.
- Any additional expenses for a handicapped child or of special needs.
- Increase in cost to provide care for the child.
- An increase in expenses for court-ordered supervised visitation or supervised exchanges
Spousal Maintenance Basics
There is one threshold question that the court uses to decide whether a spouse is entitled to spousal maintenance. If the first threshold is met, additional questions will be used to determine the amount and duration of spousal maintenance.
In order to qualify for spousal maintenance, the answer to the following question must be “yes”.
Does a spouse lack sufficient property to meet his or her reasonable needs?
If a spouse lacks sufficient property to meet his or her reasonable needs; The following factors are used to determine the amount and duration of the Spousal Maintenance payments:
- Length of the marriage
- Each party’s age and health
- If one spouse can’t support themselves through employment because they must stay home to care for a young child or a special needs child
- Employment and employment potential of both parties
- The parties’ respective resources
- The ability to pay
- A party’s deferment of career opportunities and
- Assistance in the career opportunities and education of the other party
Modifying Spousal Maintenance
Spousal Maintenance can be modified in two different ways:
Informal process outside of Court
Through Mediation
Through an Informal Settlement Meeting
Formal Petition with the Court
Mediation
If your Spousal Maintenance is modifiable, you can attend private mediation with your spouse to work out an agreement. If you can agree, you can create a new agreement and modify your current Spousal Maintenance Order. We offer Mediation Services and we can attend a mediation on your behalf or we can conduct the meditation between you and your ex.
Settlement Meeting
If you and your ex are able to come to agreements about the changes to your current spousal maintenance order, but you have questions or if you need help with drafting the new agreement, then you can contact us and schedule an informal meeting with an attorney.
Petition to Modify
If you are unable to come to any agreement with the other party regarding changes to the current Spousal Maintenance Order, your other option is to file a formal petition with the Court, known as a Petition to Modify. This petition notifies the Court and the other party that you want to change the current Spousal Maintenance Order.
The Petition to Modify
- Filing the Petition
- Service of the Petition
- Response to Petition
- What happens is the other party does not respond?
If an agreement between the parties cannot be reached and if the “continuing and substantial” standards listed above are met, in order to change a current Spousal Maintenance Order a Petition to Modify must be filed with the court.
Once the Petition has been filed with the Court, the Petition MUST be served on the other party. The other party has 20 days to respond (if served in state) and 30 days to respond (if served out of state).
Once the Petition to modify has been served. A Response to the Petition must be filed with the court. Once the Response has been filed, the Court will set a Court date.
If a Response to the Petition is not filed, a default action can be filed with the court. A default action is situation where one party is being non-responsive and the default action notifies the Court. Once a default has been filed with the Court, a hearing is set and the non-responsive party has ten (10) days to respond. If the other party does not respond within that time frame or does not appear at the Default Hearing, the Court will grant the requests that were outlined in your Petition to Modify.
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Current Updates Regarding Coronavirus and Divorce and Custody in Arizona
Best Law Firm has seen new challenges while assisting families with divorce and child custody during the pandemic. Courts are open and law firms have been deemed essential services, so we are also open and exercising all safety precautions. If you have any questions or would like to schedule an attorney consultation by video or phone, please call us at 480-219-2433.
Spousal Maintenance Quick Facts
Who?
Either spouse may be entitled to received spousal maintenance.
Waive
You can waive spousal maintenance you are entitled to.
Children
Children are not a factor in child maintenance awards.
Lifestyle
The style to which you have been accustomed is not the standard for spousal maintenance payments.
Modifiable?
You can waive spousal maintenance you are entitled to.
Taxes
Generally, spousal maintenance is taxable to receiver and tax deductible to the payer. See a tax professional for advice.
Frequently Asked Questions
How is spousal maintenance paid?
It can be paid directly from one spouse to the other. Both parties should keep very accurate records of the payments. The court may order the payments to be made through the Clearinghouse, administered by the State of Arizona. They keep track of payments for you. Failure to pay is more easily handled in the court if the payments go through the Clearinghouse. Be aware that there is a lag time between the time payment is made and the time it is received if you go through the State.
What if my husband has quit his job on purpose to avoid paying me?
If you can prove it, the court will consider the earning potential, not necessarily what he is actually earning. You would want to get his work records through discovery to find out if he quit, was fired, or was laid off.
When does spousal maintenance end? (A.R.S. §25-327)
Spousal maintenance terminates upon the death or remarriage of the receiving spouse. This is called non-modifiable but excludes these two situations. There will be a beginning date and an ending date for the payments if you negotiate it and if a court orders it.
What if my former spouse refuses to give me current financial information relating to support or changes in jobs? (A.R.S. §25-513)
You may send a written request by certified mail to your former spouse’s employer or former employer requesting detailed information about all pay and benefits paid to your former spouse by the employer. You may also file a Petition for Order to Show Cause or request for expedited hearing requiring your spouse to provide you with the relevant information and to keep you apprised of his or her current employer’s address. You should consult with an attorney.
What if my husband had a really good job and now is unemployed?
Depends, if he cannot find employment, you may not be entitled to any spousal maintenance. You will have to investigate the reasons for the unemployment.
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