How to Win (or Defend Against) Spousal Maintenance

by | Jul 23, 2014 | Alimony, Podcast, Spousal Maintenance, Support and Alimony, Wendy Hernandez Blog

How to Win (or Defend Against) Spousal Maintenance

Episode 46

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Disclaimer: The materials and content within this podcast are intended as general information only and are not to be considered a substitute for professional legal advice or a consultation with a lawyer.

1. Family Law Tip of the Week

Remember that when it comes to lawyers, as with anything, you get what you pay for. If you are in the market for an attorney, consider that what you invest will affect what you receive in return.

2. How to Win (or Defend Against) Spousal Maintenance

Tracy Augustin is one of the attorney team members at Hernandez Family Law.  Over the years, Tracy has had several highly contested cases, all because of the issue of spousal maintenance. In Arizona, there’s a long list of factors that the court looks at to determine whether spousal maintenance is appropriate or not. In today’s episode of The Family Law Insider, Tracy returns to talk with Wendy about spousal maintenance.

Cases Get Ugly Over the Issue of Spousal Maintenance.

“Most cases would settle very early on if it weren’t for spousal maintenance.”

Division of property and debt is pretty easy. Because the law dictates an equitable division, that’s usually just doing math! It is harder to settle a case when there’s spousal maintenance at play. There are no set guidelines governing the amount and duration of spousal maintenance…or when one’s entitled to it.

In the Arizona court system, there’s a statute the court looks at to decide spousal maintenance issues (Arizona Revised Statute Section 25-319). This statute lays out a two-part test/analysis to determine whether alimony is appropriate in any given case:

Subsection A deals with whether an individual is entitled to maintenance to begin with. Subsection B deals with the amount and duration of an award (if a person is actually entitled).

It’s Not Necessarily Just Giving Up A Career That Commands a Spousal Maintenance Award.

The court can look at “support” as anything from emotional support, to packing lunches, to getting the kids off to school every day.

“It’s a different type of support.”

In cases where there’s a conscious choice that somebody’s going to be a stay-at-home mom/dad, it’s a choice that they both agreed on, and it means one party wouldn’t be earning income, the court could find that one spouse supported the other during the marriage.  If toil and efforts are going into a marriage, that is a type of support. Just because a party is not bringing home a paycheck doesn’t mean that they haven’t “supported” the working spouse or the community.


It’s Not Necessarily About A Financial Contribution.

“Those contributions could also be emotional contributions, as well as working a job somewhere to support the household, while the other spouse is going to school.” A person could be entitled to spousal maintenance if they contributed to the educational opportunities of the other spouse. “Contribution” does not necessarily mean a financial contribution. If one of the spouses is going to school, if the community is funding that education (and even if the non-working spouse is not putting money into that person’s pocket or paying the tuition), the community is supporting the ability to get that education.

Spousal Maintenance Is Kind Of A Prediction.

“If there’s actually nothing that they’re going to be getting (like a degree) at the end of it, it might actually bolster some of these claims for spousal maintenance.” The court must look at the spouse who’s asking for support and what their ability is (to be self-sufficient) after the divorce. Is that person going to be able to be self-sufficient based on the division of property and debt (that is going to happen at the end of the marriage)? You have to take into consideration what accounts there are, what retirements are, what property there is and then look at what income can be derived from that, post-marriage.

Try And Figure Out Some Realistic Number.

“If you’re not planning . . . that could be a huge expense for you, every month.” During a spousal maintenance case, each party must make an outline, a list, or fill-out a financial affidavit of their expected financial needs after the divorce. You have to try to come up with (realistic) figures that you could present to the court to show what your standard of living is going to be like. One main thing to look at is your post-divorce health insurance cost. This could be big, especially for older couples who are getting divorced. “Just think about what your monthly bills are.” Maybe you need to go out and get your own cell phone. Maybe you need to get your own car insurance. What about a new place to live? Just think about your daily needs. It’s all about trying to brainstorm those and getting that realistic picture of what your life and budget is going to be like after the divorce. “It’s a huge mistake to under-estimate or over-inflate.” In her practice, Wendy sees a lot of people making the mistake of over-inflating their expenses. In this circumstance, if you take your case to a judge, the judge might think you’re being unreasonable. Then, there are other people who under-estimate their future expenses. Wendy recommends that once you’ve gathered your initial numbers and put them into a financial affidavit, go over the numbers with somebody (if you don’t have a lawyer) who knows how you live your life and who’s going to be honest with you. “Understand that you may have to cut, just a little bit.” You don’t want to go in to the judge and say you spend $2,000 a month eating out, because the judge is going to say that’s unreasonable. But at the same time, be realistic. As you get divorced, you won’t be living off two incomes anymore, so there are going to be concessions you’re going to have to make in your standard of living.

Somebody Is Entitled To Spousal Maintenance, But How Much and For How Long?

“You can get 2 cases that are very similar, yet get two wildly different results.” In Arizona, there are 13 factors the court is going to look at in deciding how much spousal maintenance is appropriate and for how long. Start with the standard of living. (That’s usually determined by affidavit of financial information). Next, look at where are they going to be when the dust settles: What kind of job are they going to have? How long are they going to be working? Do they have better prospects for employment? Is it worth going back to school? The other big factor to consider in arguing for a specific amount or duration is physical or mental health problems or concerns of each party. Has there even been a diagnosis? Has the person asking for support tried to get Social Security Disability? Have they been denied Social Security? Tracy thinks all of these things are relevant in determining whether or not a person can work. 


There’s No Rhyme Nor Reason To Spousal Maintenance.

“It’s just so hard to know what each judge is wanting or what their end goal is.”

Spousal maintenance, in one judge’s mind, might be to rehabilitate a spouse. Another judge might say there’s more to spousal maintenance than just rehabilitation. Whenever it’s possible, Tracy advises clients to try to be creative. Maybe it’s not necessary that the other party’s going to give you money every month, but maybe you could figure out how to get “supported” in other ways.

There Is No Magic Number of Years After Which You Are Guaranteed An Award.

“I’ve seen temporary orders for spousal maintenance in a marriage that was less than 2 years.”

So many other factors come into the analysis. If you’re both gainfully employed and both making relatively close to the same amounts of money, even if you’re married for 30 years, there might not be an entitlement to spousal maintenance.

Both parties are going to be preparing for affidavits of financial information. Let’s say the would-be obligor is taking on more of the bills. That means there’s going to be less money to give to the other party (the party asking for support). A judge is also going to look at reasonable expenses of each party, as well.

Defending Against A Claim In Spousal Maintenance.

There are things that you can do and evidence that you can gather to defend against a claim for spousal maintenance.

1. If you know the other spouse is spending unreasonable amounts of money on things, Tracy would request bank statements and credit card statements. Maybe the party asking for alimony is the one who racked up debt in the first place. If you think a person’s expenditures are unreasonable, you could dissect their affidavit of financial information, thus bolstering your defense against a spousal support claim.

2. If you think a person is under-employed or not employed and they’re not looking for employment, present that as a defense to spousal support. There are even vocational experts who can be hired if you need to prove that one of the parties is underemployed.


Getting Into Better Position When Claiming Spousal Maintenance.

If you get a judge who thinks that the purpose of spousal maintenance is for rehabilitation only but you haven’t done anything to help yourself, it may not end up going so well for you. To put yourself in a better position, Wendy recommends looking for some sort of a job if you’re physically, mentally, and emotionally capable. Tracy thinks there’s a difference between being out there, looking for work, but the work isn’t out there, than making a claim for spousal maintenance, without doing a thing to try to rehabilitate yourself. If you’re seeking spousal maintenance, you should work or shouldn’t quit your job.

Make It A Full Time Job To Look For A Job.

“If you’re looking for spousal maintenance and you’re looking for work, document everything.”

Put together a journal or a calendar that says what résumé was sent to whom on what day. Document phone calls involving getting a job. Confirmation on submitting applications online should be printed out and saved for court. Get very organized about what your efforts are. Even record about how much time you’re spending per day looking for a job. This is very convincing to a court, as opposed to just showing up and testifying verbally (without documentation). Having the hard evidence is compelling.

Final Thoughts.

“There’s no guarantee.”

Tracy always tell her clients that they have to be reasonable and realistic. If you can try and settle a spousal maintenance issue, you will be better off because you could end up with a lot less, or nothing, if you take it to a court. Don’t low-ball yourself, but if there is some offer out there, contemplate it. See if it works for your budget. If it’s realistic and will get you to where you need to go, take it.

3. Thoughts From the Life Coach

In today’s thoughts, James talks about how to deal with a bad day.


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