I reviewed a preliminary draft of the new Arizona Spousal Maintenance Guidelines (March 9, 2023). The guidelines will apply to any awards entered on or after July 1, 2023, unless the petition was filed before September 24, 2022. This is only a draft and will likely change significantly before the final version is adopted by the Arizona Supreme Court. Practitioners should be aware of these changes and their effective dates in any cases involving spousal maintenance, including temporary awards.
Introduction
Like the child support worksheet, the calculator will reference a large table of statistical financial data. There will be a computerized calculator available on the court website. They are using the United States Bureau of Labor Statistics Consumer Expenditure Survey on Children by Families, adjusted for Arizona.
The guidelines lead to a preliminary target range and the court can select a number within that range, or deviate if the guidelines are inappropriate or unjust.
The guidelines also create a duration range for the award, but the court can’t deviate from the duration range.
The stated purpose of the guidelines is to (1) allow the requesting spouse to become self-sufficient; (2) achieve consistency in awards; and (3) guide in establishing awards and promote settlements.
Application
The guidelines apply to all spousal maintenance awards entered on or after July 1, 2023, unless (1) the parties agree the guidelines will not apply, or (2) the petition was filed before September 24, 2022.
The guidelines also apply to all modification petitions filed after September 24, 2022. However, you cannot establish a change in circumstances solely because the award would change under the guidelines–has to be something more.
Step 1: Determine Family Size
The family size includes the parties and any child for whom at least one of the parties has a legal obligation to support–no court order required. That includes natural children, children from other relationships, adopted children. It would not include disabled family members, parents, stepchildren.
Question: What if one spouse has a child they never see but still have a legal obligation to support?
Step 2: Determine Parties’ Annual Income
Spousal Maintenance Income is a term of art and appears to be basically the same definition of income used in the child support guidelines, with some important differences. It’s not gross income or adjusted gross income, and the guidelines say it “may differ” from Child Support Income.
Spousal Maintenance Income includes actual income and may include attributed income for each party. Attributed income is determined by the court similar to the child support guidelines, based on the party’s realistic earning ability in the labor market and other factors.
Spousal Maintenance Income:
- Includes child support a spouse receives from a third party for a child included in the family size.
- Does not include “reasonable” spousal maintenance paid on existing court orders in another case. This will, of course, lead to inception-style spousal maintenance trials where we argue about the reasonableness of the other party’s spousal maintenance award in an entirely difference case.
- Should include overtime and income received from an extraordinary work regimen–unlike Child Support Income.
- May include income from “dissipated income-producing property.”
A person can “declare retirement” upon attaining full retirement age under the Social Security Act and drawing (?) full Social Security benefits–but it’s a rebuttable presumption. If both parties receive Social Security benefits and have been married more than 10 years, the court may consider a difference in Social Security income when determining spousal maintenance.
Spousal Maintenance Income may also include property and assets. Unless rebutted, the income potential of property and assets is presumed to be the standard rate on money judgments (prime rate plus one). A.R.S. § 44-1201(B). It doesn’t apply to the first $100,000 of the asset. There are lots of special rules about this–in a complex case, you will almost certainly need a financial expert to figure it out.
Step 3: Determine Average Monthly Mortgage Principal
Here’s where they lose me. The next step is determining the average monthly mortgage principal amount. Because this amount isn’t include in the statistical data, it apparently needs to be calculated separately. It’s not the actual mortgage payment amount–it’s just the principal amount, averaged over the last 12 months.
The guidelines refer to the mortgage for the marital residence, but what about modifications? What if they are renting??
Step 4: Determine Expenditures
After those numbers are inputted into the calculator, it generates a range that approximates the average expenditures for one adult and “one-half of the family indivisible expenditures”–those are not defined.
It then combines those numbers–to come up with the total household amount?–and the combined amount is divided pro rata based on each party’s share of the income (similar to the child support calculator).
Step 5: Calculate Preliminary Target Range
The final step is performed by the calculator and subtracts the receiving spouse’s share of expenses from the combined expenses amount. This would leave the paying spouse’s share of the combined expenses? This step is supposed to produce the final target range, which provides the lower and upper limit on what the court can order.
Duration
The length of the marriage is counted from the date of marriage until the date of service. Periods of physical separation without initiating divorce or legal separation are included.
| Marriage Length | Duration |
| < 24 months | Up to 24 months |
| 24-60 months | Up to 36 months |
| 60-120 months | Up to 48 months |
| 120-192 months | Up to 60 months |
| 192+ months | Up to 92 months |
Rule of 65: When the age of the party seeking maintenance plus the length of the marriage exceeds 65, the duration range above will not apply. The party seeking the award must be at least 42, the marriage length must be at least 16 years, and the combination of those two numbers must be equal or greater than 65.
Disability: If the evidence establishes a permanent disability, the duration will be determined on a case-by-case basis. If it is uncertain whether the disability is permanent, err on the side of a fixed award and the burden is on the receiving spouse to come back and demonstrate a continuing disability.
Starting date: For final orders, the first of the month after the decree is entered unless the court orders otherwise. For temporary orders, the first of the month following service of the motion for temporary orders.
Deviation
The court must deviate if the target range is inappropriate or unjust. The deviation is based on the § 25-319(B) factors, but also includes other factors such as the tax rates for both spouses and difference in cost of living.
Temporary Orders
- Income will not be attributed to the requesting spouse if they have not been employed full-time by a “bona fide employer” for at least 24 months immediately before the petition was filed.
- A party must ask the court to make the temporary award retroactive, or the court cannot order it.
Modifications
- To extend the range beyond the original duration, a party must show changed circumstances after the entry of the initial award. If established, the modified term of the award may not exceed the maximum applicable duration range.
- Retirement of the paying party may constitute a change in circumstances, whether or not it was contemplated at the time of the original award. See Chaney v Chaney, 145 Ariz. 23, 26-27 (App. 1985).
Other Considerations
- There is a dispute within the guidelines committee about whether it is a deviation to find that a spouse is eligible for spousal maintenance but not entitled to spousal maintenance. Is the court required to order spousal maintenance under the guidelines, and can only decline if it makes a deviation? New statute language says “shall” order pursuant to the guidelines.
- IMPORTANT: If the parties enter into an agreement regarding spousal maintenance while a case is pending, the agreement must state that the parties entered the agreement with knowledge of the amount that would have been ordered under the guidelines but for the agreement.