Lawmakers push to limit spousal support for divorced Arizonans

Legislation awaiting final House and Senate approval — having won preliminary approval on party-line votes with Republicans in support and Democrats opposed — would add new conditions before a judge could determine that someone is entitled to spousal maintenance. That includes both the share of property the person would get as well as that person's earning ability.

But the key to Senate Bill 1049 is that it would absolutely bar a court from awarding maintenance for more than four years. That limit would apply regardless of factors that judges now can consider — such as the length of the marriage and whether one spouse lacks earning ability because they remained at home to care for the children and the house to help enable the other spouse to go to school and advance career opportunities.

Flagstaff Republican Sen. Wendy Rogers said she considers the four years appropriate.

"Spousal maintenance is designed to get a spouse back on his or her feet after a divorce,'' she told colleagues. "But after how many years has that been accomplished? So this puts a finite number on it.''

Why four? She said that is enough time to get a college degree and "get back on one's feet.''

But Sen. Mitzi Epstein, a Tempe Democrat, said creating a one-size-fits-all approach — and failing to consider individual circumstances — is "cruel.''

Rogers told colleagues she is sponsoring the legislation at the behest of Senate President Warren Petersen.

But Petersen, a Gilbert Republican who is running for attorney general, did not testify at any committee on behalf of the measure nor return messages about why he wants the change in state divorce laws.

That left it to Rogers to answer lawmakers' questions about the plan. She conceded she could cite no evidence of abuse of or problems with the current system of letting courts decide these issues, "just a broad brush situation where spouses were getting spousal maintenance for the rest of life.''

The bill would put "guardrails'' on the process, Rogers said.

Rep. Lupe Contreras, an Avondale Democrat, said the problem with the legislation is the failure to consider other factors.

Consider, Contreras said, a situation where one spouse has set up a company, a move made possible because the other spouse was staying home and presumably sharing in the benefits of that revenue.

If there is a divorce, there is still money coming in to the company. "Who are we to say that it stops within four years?'' Contreras asked.

"I guess I would answer your question with another question,'' Rogers responded. "When does it stop?''

Rep. Quang Nguyen, a Prescott Valley Republican who supports the measure, said if couples know that spousal maintenance ends in four years, he would expect that to come up during the divorce process as assets, like businesses, are divided.

One person who testified for the bill was Keith Berkshire, a family law attorney who boasted to lawmakers that he has probably handled more divorce cases that end up at the appellate court level than anyone else. He said his experience is that at least 90% of divorce petitions request spousal maintenance.

The Arizona Supreme Court, acting at the direction of the Legislature, established guidelines that judges are supposed to use in the current system, Berkshire said. The problem is there is not a lot of flexibility, he said: If someone meets certain conditions, such as having been married for 12 years, that person gets a year of maintenance.

Other factors a court considers are issues such as the length of the marriage and whether someone has reached an age "that may preclude the possibility of gaining employment adequate to be self sufficient,'' and whether the person has made a "significant contribution'' to the other spouse's education, training, career or earning capacity.

What's missing from all that, Berkshire said, is computation of any assets.

"That means if you are 80 years old with a 40-year marriage and have $100 million, you qualify for maintenance,'' he said. "It doesn't matter how rich you are.''

But some lawmakers argued that an arbitrary limit on every divorcing couple is no more fair.

"A four-year limit on spousal support has no recognition for what it's like to be the spouse who gave up everything, to take care of the children, to make her or his career secondary to the other breadwinner, to get the education they need in order to support themselves,'' said Epstein. "Four years is laughable if it weren't so cruel.''

Sen. Lauren Kuby, a Tempe Democrat, said she also could not support weakening maintenance laws.

"There is a fundamental misunderstanding here of some in this chamber that spousal support is some kind of gravy train that provides an ex-spouse an extravagant standard of living,'' she said. "That is not the case.''

Kuby said there's nothing wrong with the current guidelines that judges use to determine when maintenance is appropriate.

"The spouse needs to have a lack of sufficient earning ability or sufficient property,'' Kuby said.

She also noted that judges can consider whether there is a child whose age or condition makes it impossible for the parent to seek employment outside of the home. And then, Kuby said, there are those who, based on their age when divorce occurs and the number of years of marriage, cannot reasonably be expected to find employment.

SB 1049 ignores those situations that don't fit neatly into a category, she said.

"That can mean an elderly person who gets a divorce later in life is dependent on spousal maintenance to pay their rent,'' Kuby said.

She said others need to stay home with children with special needs. 

"We need to allow for judicial discretion,'' Kuby said.

Tucson Democratic Rep. Nancy Gutierrez called the bill "dangerous.''

"This could really hurt people, spouses who are getting a divorce and maybe haven't been in the workforce for several years, maybe because they were raising children and maybe because they have disabled children at home and weren't able to be in the workforce and add to their résumé,'' Gutierrez said. 

Nguyen added a provision to the bill at the last moment on Monday.

Arizona law already says that, generally speaking, maintenance ends when someone remarries. But the new provision would say maintenance also would go away if the person getting the payments "has habitually cohabitated for one year or more with another individual in a relationship that is analogous to a marriage.''

Nguyen said he could not respond to a question of how a court determines what is cohabitation or someone simply spending a lot of nights with a boyfriend or girlfriend.

"Rogers can be a better person to answer,'' he said, suggesting the new language he added came from her.

Rogers, however, did not respond.