Your Guide Through A Difficult Process
In Arizona, alimony is called "spousal maintenance" which is money that one spouse pays to the other for support either during or after a divorce (or both). When spouses separate, one person may be unable to pay for regular living expenses, in which case a judge may require the higher earner—whether that is the husband or the wife—to assist the lower earner financially for at least some period of time. Spousal maintenance in Arizona will not necessarily be granted in every divorce or legal separation case.
A spouse requesting spousal maintenance 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.
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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 court’s 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 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.
Modifying or Terminating Alimony Early
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 “incorporated 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 MacMillan v. Schwartz 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 then decide whether to leave the alimony award in place, modify it, or terminate the award entirely.
Does Alimony in Arizona Terminate Upon Remarriage
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.
DIVORCE AND FAMILY LAW
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