In re Kelly and Moesslang: The court rejected the appellant’s claim that the statute prohibits it from using Title 38 benefits to fund spousal maintenance.
By Leonard Karp & Katherine Scott, family lawyers
In Downing v. Downing, the Arizona Court of Appeals held that courts must exclude from consideration any benefits received pursuant to Title 38 when determining whether to award spousal maintenance and how much to award. The opinion was based on the plain language of Arizona Revised Statutes § 25-530, which states as follows: “In determining whether to award spousal maintenance or the amount of any award of spousal maintenance, the court shall not consider any federal disability benefits awarded to the other spouse for service-connected disabilities pursuant to 38 United States Code Chapter 11.”
The court further held the appellant’s argument that the statute only prohibits courts from using Title 38 benefits to fund spousal maintenance awards to be contrary to the unambiguous statutory language. Moreover, the court also found their statutory interpretation as consistent with A.R.S. § 25-319(B)(4) and (5) (requiring the court, when deciding the amount and duration of a maintenance awards, to consider the factors of the ability of the payor and recipient spouse to meet their own needs as well as the comparative financial resources of the spouses).
However § 25-530 does not extend to prohibit combat-related special compensation (CRSC), because that particular federal disability benefit falls under Title 10 and not Title 38 of the U.S. Code. Priessman v Priessman, 228 Ariz. 336 (Ct. App. 2011).
Leonard Karp & Katherine Scott are family law attorney and an associate, respectively, with Karp & Weiss, a Martindale-Hubbell “AV” rated law firm, the highest possible rating.
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