By: J. Kyle Scoresby

Just about every day a client or potential client asks me how much spousal maintenance (alimony) she will receive in her divorce or how much spousal maintenance he will have to pay in his divorce. Just about every time my answer is, “I don’t know.” That is a bit of an exaggeration, but it is close. It is extremely difficult for any lawyer, however experienced, to accurately predict the outcome at trial of a spousal maintenance dispute. Judges have broad discretion in deciding spousal maintenance disputes, and on any given day, two judges presented with identical evidence might render drastically different decisions.

Some cases are easy. Where the husband and wife have been married to each other for a very short time or where their incomes are close to equal, there usually won’t be any spousal maintenance. In many of these easy cases, spousal maintenance isn’t even requested, or the request is dropped long before the case gets to trial. The majority of cases where spousal maintenance is requested, however, fall into a large gray area within which the judges’ decisions can fall near the center or at the extreme fringes.

Consider a case in which the husband has a bachelor’s degree and works as an engineer earning $90,000 per year. When the parties married, the husband earned $50,000 per year. The husband and wife have been married 15 years, during which the wife has primarily stayed home and raised the parties’ two children, who are now 10 and 12 years old. Before she had children, however, the wife had a masters degree and earned $70,000 per year, even more than the husband was earning at that time. The wife does not work now, and she claims it will be difficult for her to return to work after all this time being a stay-at-home mom. The husband asserts that with a little effort the wife could return to work and soon be earning $60,000 per year or more. Wife files for divorce and seeks spousal maintenance.

Given this hypothical fact set, what will the outcome be? Will the wife receive spousal maintenance? If so, how much will she receive and for how long? The answer: I’m not sure. In this situation, the trial judge would consider all relevant evidence presented at trial, including evidence about the wife’s earning ABILITY (the judge is not limited to looking at the wife’s actual earnings), to determine whether the wife should be awarded spousal maintenance, and if so, to determine how much and for how long. It is up to the judge to determine what income or earning ability to use for the wife in deciding the spousal maintenance issue.

The statute governing spousal maintenance in Arizona is Arizona Revised Statutes (A.R.S.) Section 25-319. Subsection A outlines the criteria the judge is to consider to determine whether a person qualifies for spousal maintenance. If the judge determines that the person requesting maintenance does not qualify under Subsection A, that is the end of the inquiry. Subsection B outlines criteria a judge should consider to determine the amount and duration of a spousal maintenance award only AFTER determining that the person qualifies for maintenance.

Lawyers are advocates. Lawyers present facts and argue law in an effort to achieve favorable outcomes for their clients. An aggressive and skilled lawyer can often achieve a far better result for his client on a spousal maintenance issue at trial than the client would achieve without good representation. It is not realistic, however, to expect that a lawyer can consistently and accurately predict outcomes of spousal maintenance cases. Any lawyer who has that ability should apply his skills to stock market trading or in Vegas and make a much better living than he ever could trying spousal maintenance cases.

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© 2011 J. Kyle Scoresby, P.C. All rights reserved.