A RATIONAL APPROACH TO SPOUSAL MAINTENANCE, PART THREE: HOW LONG IS IT PAID?

Once it is determined that spousal maintenance will be paid, the duration of the payments, along with the amount paid, must be agreed upon. The duration of the payments is subjective and driven by the facts of the particular case. Once again, the Arizona spousal maintenance statute provides little clear guidance in ascertaining how long the payments should continue. The primary statutory criteria are the following: a) length of the marriage; b) age, earning ability and employment history of the receiving spouse; c) whether the receiving spouse contributed to the earning ability of the paying spouse and/or reduced their own earning ability in doing so; d) the time necessary for the receiving spouse to attain the education or training to be reasonably employed.

As can be seen, the attorneys and the parties must pretty much strike out on their own in resolving the specific duration of payments issue. Again, this is a negotiation which works best if all involved are working together in a way that both spouses can live with and endorse.

Peter Axelrod
pdaxelrod@earthlink.net
520.622.6075

A RATIONAL APPROACH TO SPOUSAL MAINTENANCE, PART TWO: HOW MUCH IS PAID?

As with the determination whether spousal maintenance is to be actually paid, if the answer is yes, clear guidance on how much the payment should be finds little aid in the Arizona spousal maintenance statute. Generally, the statute states that the criteria to be taken into consideration in determining how much spousal maintenance is paid are: a) the standard of living experienced by the parties during the marriage; b) the income difference between the parties; c) the ability of the paying spouse to make spousal maintenance payments; d) the financial resources of the party receiving spousal maintenance, including the assets received in the divorce action. As one can see, little specific direction is provided in the Arizona statute to determine the actual amount paid.

Thus, attorneys and parties are left to find a rational approach to determine the dollar amount of spousal maintenance paid. One such approach might be the following:

1) The parties ascertain their reasonable living expenses. The operative word here is “reasonable”, and it is important that this standard be adhered to in the process; the reason being that there may be a tendency to inflate expenses with the hope of gaining an advantage in hiking up or limiting the amount paid.

2) Once expenses are ascertained, one would then look at the resources the receiving spouse may have (apart from the paying spouse) to meet their living expenses. These resources could be interest and dividend income from assets, rental property income or employment income. Whatever it is, the receiving spouse’s own resources are the first place to look to meet that person’s expenses.

3) When the first two steps are completed, if there is a shortfall in the receiving spouse’s ability to meet expenses, one would look at the paying spouse’s income in order to determine whether that person has sufficient income to not only meet their own expenses but also to cover the income shortfall of the receiving spouse in paying their expenses.

The above process, while simple in structure, is at its’ heart a significant negotiation that must be satisfactorily resolved by the parties and their attorneys.

Peter Axelrod
pdaxelrod@earthlink.net
520.622.6075

A RATIONAL APPROACH TO SPOUSAL MAINTENANCE, PART ONE: YES OR NO?

The first step, albeit a sometimes inconclusive one, in analyzing whether a party meets the requirements for an award of spousal maintenance is to review Arizona Revised Statute 25-319.  This review will find that the standards in Arizona for paying/receiving spousal maintenance are broad and non-specific with respect to each individual case.  A summary of the statute discloses that if spousal maintenance is to be paid, the receiving spouse must either: a) lack sufficient property for use in supporting themselves in a reasonable way b) be unable to support themselves through appropriate employment or is caring for a child so that there is not the opportunity to do so c) have contributed to the educational opportunities of the other spouse (impliedly resulting in their own employment detriment) or d) had a marriage of long duration or be of an age where seeking employment is not reasonable.

Whether these criteria fit the factual circumstances of any particular case is a judgment call left to the parties, the attorneys or the court. Sometimes the call is clear and sometimes it is not. One of the circumstances where it is not so clear is where both parties are employed outside the home, neither is caring any more or less for the children, if there are any, but there is a discrepancy between the incomes of the parties. In this case, whether spousal maintenance is awarded again becomes a judgment call hinging on the degree of income discrepancy between the parties. In making such a decision, one way to approach such a judgment is to ascertain whether the lower income earning spouse has sufficient income to meet their reasonable needs taking into consideration the general lifestyle standard experienced during the marriage.

Peter Axelrod 
pdaxelrod@earthlink.net 
520.522.6075