S & M (Spousal Maintenance) in Divorce – All Pain. No Pleasure.

Written by: Tracy Augustin

 

The one issue that often prevents a full divorce settlement is “S & M” (spousal maintenance).  

 

Yes, you heard me right!  

 

S & M.  But in in MY family law world, “S & M” means something that is often painful, but often NOT in a good way:  SPOUSAL MAINTENANCE.

 

The difference between “S&M” and “S&M” (spousal maintenance) in the context of divorce is that all of the pleasure is taken out when the only thing holding you back from a full settlement is the issue of spousal maintenance.  

 

Even in divorce cases where every piece of property has been divided, even down to the grill (see blog post entitled “A Man’s Grill is Community Property” says Arizona), the issue of spousal maintenance is often one of the “hard limits” for parties, forcing them to trial.

WHY?  Well, much of the issue lies with the fact that an award of spousal maintenance in Arizona is completely arbitrary (RANDOM) as to the amount and the duration.  AND, unless a consensus is reached between the parties, the decision will be left to the judge’s discretion.  Kind of scary, huh?

 

During my years of practicing family law, I have been surprised to learn that many families are living off a single income, whether by choice, necessity or circumstance.  I have discovered the harsh reality that many are either supported by one breadwinner or the majority of the support comes from one spouse due to a large difference in incomes between the spouses.  Other families choose to have one parent stay-at-home.  Some families just don’t need two incomes.  And, in some families, one of the spouses may be unable to work due to health reasons.

 

In my experience, there are typically two kinds of spousal maintenance cases:

 

1.    The case in which both parties agree one spouse should receive some form of spousal maintenance.

2.     The case in which one party is requesting maintenance and the other party doesn’t believe maintenance should be given.

 

This is where Arizona’s spousal maintenance laws come into play.

 

In the event the parties disagree about whether spousal maintenance should even be awarded in the first place, the parties and court will turn to the first part of  Arizona’s two-part spousal maintenance statute.  This is the entitlement hurdle, and it outlines specific reasons why an award of spousal maintenance may be appropriate for the requesting spouse.  One of the main things to consider under the statute includes whether the requesting spouse has the ability to be financially self-sufficient after divorce.  Another consideration is whether the requesting spouse contributed to the other spouse’s educational opportunities.

 

If the parties eventually end up agreeing that the requesting spouse should receive some spousal maintenance, the next point of contention will have to do with reaching a consensus as to the amount and duration of the award.  Some considerations given to determine this (as outlined in the statute) are:

 

1.     What was the standard of living during marriage?

2.     How long have the parties been married?

3.     What are the ages of the parties?

4.     What is the earning ability of each of the parties?

 

There is a laundry list of other considerations the Court may consider that are listed in the statute.  Unfortunately, for those going through divorce proceedings, there is absolutely no guidance given as to what the monthly amount should be and for what length of time the award should be in effect.  Unlike determining child support, there is no “magic” formula.  Not very helpful, is it?

 

That means that once again, the parties in a divorce proceeding are left to their own devices to find some meaningful way to negotiate about “concepts” and then convert those concepts to dollar values.  Easy, right?

 

WRONG.  It’s really not easy at all.  AND, that is why the issue of spousal maintenance is often the last to be resolved.

 

AND that is why the issue of “S & M” in divorce is usually all pain, no pleasure.  

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