Spousal maintenance is one of the most complicated topics to discuss in divorce or legal separation mediations. There is no adopted formula to use, unlike child support calculations, and the law is vague enough so that two vastly different positions may be “reasonable.” Further, it is a topic fueled with emotion. Many people feel more offended by the thought of paying spousal maintenance than almost anything else. Also, participants who feel emotionally injured by his/her spouse sometimes attempt to use spousal maintenance as a way to make the spouse pay “penance.” Finally, spousal maintenance is a complicated topic because there are so many moving pieces: how much, how long, paid in what increments, paid through what manner, under what conditions?
The following is information from which participants in mediation may benefit to resolve a spousal maintenance issue:
1. What is Spousal Maintenance?
Spousal maintenance is support paid to a spouse in a divorce or legal separation action. It is intended to help certain spouses get back on their feet financially, or to provide assistance to people that will never be able to support themselves.
To qualify for spousal maintenance, one of the following factors must apply:
A. The requesting spouse must not have sufficient property, including the property awarded in a divorce or legal separation, to provide for that spouse’s reasonable needs;
B. The requesting spouse must not be able to support him/her self through appropriate employment, or that spouse must care for a child that, because of the child’s age or condition, requires that spouse to not earn an income;
C. The requesting spouse contributed to the educational opportunities of the other party;
D. The marriage was of a long duration, and the requesting spouse’s age may prevent him/her from gaining employment that would allow him/her to be self-sufficient.
Once it is determined that a person qualifies for spousal maintenance, the next questions are: how much spousal maintenance and for what length of time? The Court looks at thirteen different factors to determine the length and duration of spousal maintenance. The factors include: the length of the marriage, the standard of living the parties enjoyed, the paying spouse’s ability to pay and the resources of the party receiving support. All of the factors can be found in Arizona Revised Statute § 25-319, which is available online.
2. Understanding the Benefits of Resolving the Issue in Mediation.
Using mediation to resolve a spousal maintenance issue has the following benefits:
A. Going to court on the issue of spousal maintenance is very risky. The Court has a lot of discretion, and it is impossible to accurately predict the outcome of a contested spousal maintenance issue. If the same case is tried in front of five different judges, parties are likely to get five different spousal maintenance awards.
B. The Court only has the authority to enter modifiable spousal maintenance, unless the parties agree otherwise. This means that either party can ask the Court to change the spousal maintenance Order (increase or decrease the time period it is awarded or the amount awarded) if the request is made during the term of the spousal maintenance award. With an agreement, the parties can choose to make spousal maintenance non-modifiable (meaning, no matter what happens, neither party may modify the terms of spousal maintenance, without the agreement of the other party). Some people like this option because it provides them with certainty.
C. With an agreement, the parties can enter other flexible terms, like:
1. Allowing spousal maintenance to automatically end under defined conditions (like if the party receiving spousal maintenance cohabitates);
2. Allowing spousal maintenance to decrease or increase in amount over time, either automatically or based, for example, on the amount of money the receiving spouse is earning (for example, if a party earns X, spousal maintenance decreases or increases to Y);
3. Allowing spousal maintenance to continue past remarriage. Absent an agreement otherwise, spousal maintenance ends on the receiving party’s remarriage or either party’s death.
4. Parties can also be more creative about the methods of payments, though they should talk to an accountant to confirm the payment method does not disqualify the payments from being considered spousal maintenance.
D. It can be quite expensive and time consuming to litigate the issue of spousal maintenance. To prove ones case, extensive discovery is often needed. Also, sometimes multiple experts are needed – like forensic accountants and vocational experts. Sometimes parties share experts, but, often, each party retains his/her own expert, thereby exponentially increasing the cost. By contrast, when parties reach their own agreements in mediation, most of that cost can be avoided as the parties work together to find a good compromise, without the risk and cost associated with litigation.
3. Determining the Participants’ Needs and Abilities.
Often, the mediation participants’ decision regarding the terms of spousal maintenance comes down to one party’s need and the other’s ability to pay. A modicum of reasonableness and common sense, which can be brought out by a skilled mediator, is needed to determine the duration of spousal maintenance (Were the spouses married two years, or thirty? Is the receiving party twenty years old or eighty?). To help determine needs and abilities, it is useful for the mediation participants to complete a written budget.
4. Use of Experts.
A financial planner skilled in divorce issues can help the participants determine their needs and abilities in a more sophisticated and accurate way, which sometimes helps mediation participants break an impasse on the issue of spousal maintenance. The participants can also choose to jointly retain a vocational expert to assess the earning ability of a spouse who has been out of the job market. Even when experts are used in mediation, the costs are lower than in litigation because the parties generally jointly retain one expert, and the expert’s role is limited – trial preparation and testimony are not necessary.
As with all mediations, it is recommended that the participants consult with a “mediation-friendly” attorney before entering into an agreement. Additionally, spousal maintenance has tax consequences, so participants are also encouraged to consult with an accountant before making a final decision on a spousal maintenance agreement.
Alona M. Gottfried is a mediator and attorney in Arizona. If you have questions about mediation, she can be reached at: 480-998-1500 or firstname.lastname@example.org. This is a general interest article only and is not intended to be legal advice. See a legal professional before making legal decisions.
Simmons & Gottfried, PLLC
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260