When a divorce starts, both spouses may be faced with difficult financial issues. How are bills going to be paid? Who will support the children?   If you are a spouse who is not employed at the beginning of a divorce case or lack employment experience, your financial situation will likely seem even more precarious. Among the financial questions you might be asking is undoubtedly — how am I going to support myself and my children? Am I entitled to spousal maintenance? Assuming your spouse has sufficient earnings to provide you financial assistance, there is likely an issue regarding the amount and duration of spousal maintenance to discuss with your attorney and to be resolved by the Court.

Prospective clients often say that their friends, family or neighbor tell them not to work to minimize their financial resources in order to maximize the need for spousal maintenance. Not so fast. In Arizona, when the Court determines the amount and duration of spousal maintenance, it will analyze, pursuant to Arizona’s spousal maintenance statute (A.R.S. Section 25-319), the financial resources of the spouse requesting spousal maintenance. This primarily, though not exclusively, involves an examination of that spouse’s monthly earnings.   If the spouse seeking spousal maintenance is not working, the Court will usually attribute income to that spouse, based on his / her earning ability. Under Arizona law, the earning ability of that spouse should be based on “appropriate” employment (i.e., employment that is consistent with that person’s education, skills and experience), as opposed to just any available employment. A spouse who is seeking spousal maintenance will be – expected to maximize his or her “earning ability” by working as many hours as possible and pursuing employment that provides the highest level of pay.

Moreover, most family law judges in Maricopa County, Arizona (if not the entire state), will expect a spouse who is seeking spousal maintenance to have a “plan” for obtaining employment, if they have been out of the work force for any period of time. That plan may involve, depending on the circumstances of the spouse in question:

  • A description of the education (classes or training) required to reenter the work force;
  • An explanation of why the education (classes or training) will specifically help the spouse find employment;
  • A listing of the jobs or employment positions pursued; and
  • A listing of job interviews attended and / or job applications submitted, with copies of the applications and the responses from prospective employers.

Bottom line is that if you are seeking spousal maintenance, pursuing appropriate employment should not be ignored. The more control and direction you have over your economic circumstances, the better, and the less reliant you will be on the spousal maintenance decision by the Court.

About the Author:

Steven Wolfson (Member, Phoenix) focuses his practice on all areas of family law, including legal decision-making and parenting-time disputes, business valuations, spousal maintenance and high-income child support determinations and pre and post-nuptial agreements. He has been certified as a specialist in family law by the State Bar of Arizona Board of Legal Specialization and serves as a Judge Pro Tem in the Maricopa County Superior Court for family law cases. Please contact Mr. Wolfson in our Phoenix office at 602-285-5037 and visit his bio here.