Key Points:

• State lawmakers propose sharp cuts to divorce maintenance payments

• New legislation would add conditions for awarding maintenance

• Lawmakers disagree on whether judges should have discretion in maintenance awards

State lawmakers are on the verge of making sharp cuts in divorce payments. Specifically, how long those getting divorced will have to pay their soon-to-be former spouses.

Legislation awaiting final House and Senate approval 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 GOP supported Senate Bill 1049 is that it would absolutely bar a court from awarding maintenance for more than four years. And that limit would apply regardless of factors like the length of the marriage or whether one spouse stayed home to care for the kids while the other pursued a career. 

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,” the Flagstaff Republican told colleagues.

“But after how many years has that been accomplished,” Rogers said. “So this puts a finite number on it.”

Why four? She said that was 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 nothing short of “cruel.”

Rogers told colleagues that she is carrying 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 the questions of other lawmakers about the plan. But she conceded that she could cite no actual 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.”

What the bill does, Rogers told other lawmakers, is put “guardrails” on the process.

Rep. Lupe Contreras said the problem with this is the failure to consider other factors.

Consider, the Avondale Democrat said, a situation where one spouse has set up a company, something that may have been made possible because the other spouse was staying caring for the home and presumably sharing in the benefits of that revenue.

If there is a divorce, he said, there will still be money coming into 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?”

And Rep. Quang Nguyen, R-Prescott Valley, a supporter of 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 did testify 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.

What’s wrong with the current system, Berkshire said, is that the Supreme Court, acting at the direction of the Legislature, established inflexible guidelines that judges are supposed to use. If someone meets certain conditions, like having been married for 12 years, that person gets a year of maintenance.

Courts also consider things like 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 spouses’ 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 divorce 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 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,” said the Tempe Democrat. That is not the case.”

And she 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.

What’s in SB 1049, she said, ignores those situations that don’t fit neatly into a category.

“That can mean an elderly person who gets a divorce later in life, is dependent on spousal maintenance to pay their rent,” Kuby said. And then there are those who need to stay home with children with special needs.

“We need to allow for judicial discretion,” she said.

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 resume,” said the Tucson Democrat.

There’s also something else that Nguyen added to the bill at the last moment.

Arizona law already says that, generally speaking, maintenance ends when someone remarries. But the new provision would to 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 girlfriends.

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

Rogers, however, did not respond.