Establishing and Securing Spousal Maintenance
Sometimes, during or after a divorce, one spouse may need financial help from the other spouse. There are various reasons why this may be as all circumstances are different. In this article, I’m going to talk a bit about the types of support the law provides for those who are in need of, and entitled to, this type of help and also the process of receiving and securing, when necessary, that support.
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, as it is called in Arizona, is separate from child support, which is money paid specifically for the care of children.
Spousal maintenance differs greatly from child support in that a child’s eligibility for financial support by their parents, as well as parental obligation to their child, is unequivocal. Arizona law states that “every person has the duty to provide all reasonable support for that person’s natural and adopted minor, unemancipated children” (ARS 25-501). With spousal maintenance, the lines are not so clearly defined but the law does provide us with certain guidelines for determining if and when spousal maintenance is appropriate.
An award of spousal maintenance, is discretionary with the Court and depends on many factors. Generally, spousal maintenance is not awarded for marriages of short duration (for example, less than five years), but this is not a hard-and-fast rule. While the length of marriage and the earnings of each spouse are important considerations, an award of spousal maintenance depends on the “reasonable needs” of the requesting spouse.
Spousal maintenance is essentially a two-tiered inquiry. The first issue is whether one spouse is entitled to spousal maintenance. If answered affirmatively, then the second issue is the amount and duration of the award. Click here to get started online.
Eligibility for Spousal Maintenance
Not every divorce involves spousal maintenance. If the spouses have similar incomes, if the marriage was of very short duration, or if the lower-earning spouse plans to remarry immediately after the divorce, there may be no spousal maintenance. In order to be eligible for spousal maintenance, Arizona requires that a spouse meet at least one of these criteria [Arizona Revised Statute 25-319]:
- Lacks sufficient property, including property apportioned to the spouse, to provide for that spouse’s reasonable needs.
- Is unable to be self-sufficient through appropriate employment or is the custodian of a child whose age or condition is such that the custodian should not be required to seek employment outside the home or lacks earning ability in the labor market adequate to be self-sufficient.
- Contributed to the educational opportunities of the other spouse.
- Had a marriage of long duration and is of an age that may preclude the possibility of gaining employment adequate to be self-sufficient.
Requesting Spousal Maintenance
The spouse who initially files the Petition for Dissolution of Marriage (Divorce) can include in the petition proposed spousal maintenance terms, including which spouse should receive support, how much should be paid per month, and for how long. The Respondent can then agree to the terms requested by the Petitioner or propose different terms. If the parties are unable to agree on spousal maintenance terms, the court will make a decision regarding support.
Spousal Maintenance Terms
Spousal maintenance can be awarded for the period of time when the divorce is being finalized or for any length of time after the divorce until either spouse dies or until the spouse receiving support remarries.
Arizona law specifies that “The maintenance order shall be in an amount and for a period of time as the court deems just, without regard to marital misconduct, and after considering all relevant factors” [ARS 25-319]. Some factors that the court will consider are:
- The standard of living established during the marriage.
- The duration of the marriage.
- The age, employment history, earning ability and physical and emotional condition of the spouse seeking maintenance.
- The ability of the spouse from whom maintenance is sought to meet that spouse’s needs while meeting those of the spouse seeking maintenance.
- The comparative financial resources of the spouses, including their comparative earning abilities in the labor market.
- The contribution of the spouse seeking maintenance to the earning ability of the other spouse.
- The extent to which the spouse seeking maintenance has reduced that spouse’s income or career opportunities for the benefit of the other spouse.
- The ability of both parties after the dissolution to contribute to the future educational costs of their mutual children.
- The financial resources of the party seeking maintenance, including marital property apportioned to that spouse, and that spouse’s ability to meet that spouse’s own needs independently.
- The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment and whether such education or training is readily available.
- Excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community, joint tenancy and other property held in common.
- The cost for the spouse who is seeking maintenance to obtain health insurance and the reduction in the cost of health insurance for the spouse from whom maintenance is sought if the spouse from whom maintenance is sought is able to convert family health insurance to employee health insurance after the marriage is dissolved.
- All actual damages and judgments from conduct that results in criminal conviction of either spouse in which the other spouse or child was the victim.
Once spousal maintenance has been ordered by the court, it remains in effect until its term expires, the receiving spouse remarries, or either spouse dies. The Superior Court in the county that issued the divorce decree (Pima County, Maricopa County, etc.) maintains jurisdiction over the spousal maintenance order.
Sometimes couples will agree to (or courts will order) “rehabilitative” support, also called “bridge the gap” support. This is short-term spousal maintenance designed to help a spouse who has not been in the workforce or who has low income get retrained and back into the workforce. The goal of rehabilitative support is for the receiving spouse to become financially independent.
Unlike other temporary spousal maintenance orders, rehabilitative support generally does not last for a fixed number of months. It lasts until the receiving spouse is back to work. The agreement generally is that the support payments will stop when the recipient completes a retraining program and becomes employed. During the support period, the recipient is responsible for diligently pursuing the training or course of study and then searching for work. If the paying spouse believes that the recipient is not putting forth reasonable effort to complete studies or find work, he or she can ask the court to reduce the support amount or set a termination date.
Modifying Spousal Maintenance
Couples may enter into their own agreements either waiving maintenance entirely or providing that neither will seek any changes to maintenance in court. Unless they make such an agreement, or unless the final divorce order says otherwise, if either spouse has a substantial and continuing change of circumstances during the term of the spousal maintenance, he or she can petition the court to increase, decrease, or terminate spousal maintenance payments. This petition may be filed by either spouse with the Superior Court that issued the divorce or legal separation decree.
Enforcing the Judgment
There are, of course, instances in which a judgment for spousal maintenance are not fulfilled. When this occurs, one option the recipient has is to request garnishment as a means of collecting the debt from their spouse.
What is Garnishment?
Garnishment is a legal proceeding in which the plaintiff seeks to have a debt satisfied by accessing money that is owed to the debtor by one or more third parties. The example familiar to most people is wage garnishment, in which a portion of the debtor’s employment earnings may be paid directly to the plaintiff. Garnishment can be pursued under many circumstances. For example, after a divorce if the party ordered to pay child support or spousal maintenance fails to do so, garnishment may be an option to secure payment.
Garnishment includes both earnings garnishment (garnishing wages the debtor is earning at a job), which is the most common, and the less-common non-earnings garnishment (garnishing the debtor’s bank account, for example).
Wage garnishment is an option that is available when you have a money judgment against another person. A judgment is a court order for the person to pay you. It could be in a divorce settlement or from a lawsuit — any situation in which a court has ordered someone to pay you and that person has failed to do so.
The types of wages that can be garnished include salaries, commissions, wages, bonuses, or other income. Retirement income, including pensions, can also be garnished. Social security benefits cannot be garnished except by the federal government.
Filing the Application for Writ of Garnishment
If you find yourself in this position and need to file for garnishment, please consult with a garnishment attorney.
The garnishment process begins with filling out the “Application for Writ of Garnishment” and “Writ of Garnishment and Summons.” There are several other forms that also need to be filled out and submitted to the court. In fact, when you work with us on the paperwork for your garnishment we will submit close to 10 forms to the court with your initial filing, along with a copy of the judgment awarding you money against the judgment debtor.
After these papers are filed with the Court Clerk’s office, the Clerk will return some forms and you must arrange for the garnishee (remember, the garnishee is the employer of the person who owes you money) to be served with the garnishment papers. Proof of service must be filed with the court to show that the garnishee has been properly served.
There is a limited time frame to deliver the documents to the judgment debtor. You must arrange for service and then file proof with the court that you delivered the garnishment documents to the debtor.
One of the documents given to your spouse is a form to request a hearing on the wage garnishment. The judgment debtor may request a hearing after reviewing the garnishment documents. If they do, then a hearing date will be set up with the court.
Meanwhile, the garnishee has 10 business days to complete the Garnishee’s Answer and file it with the court. If the garnishee fails to answer, then the petition that will result in a hearing being scheduled for the garnishee should be filed with the court. The judge may then order the garnishee to pay you any part of the money owed to you.
If the garnishee answers, the information provided will give you guidance as to how to proceed next. If the person who owes you money is not employed by the garnishee, then the garnishee is released. If the judgment debtor is employed by the garnishee, then we will wait an additional 15 days for the person who owes you money to respond to the answer from the garnishee. AZ Statewide Paralegal no longer provides garnishment services.
AZ Statewide Paralegal offers professional legal document preparation services. We have decades of experience preparing documents for divorces, spousal maintenance and garnishment in Arizona. By using our service you can avoid the expense of a high priced attorney so that you can focus your financial resources on helping your family make necessary transitions after your divorce. There is no need to worry about deadlines and properly completing the forms. We know what to ask and provide this service to hundreds of clients each year. Contact our office in Tucson, Phoenix, or Mesa today so that we can walk you through the divorce legal document preparation services we offer.