Defending Against a Petition to Modify Alimony Orders

For the most current overview and guidance on modifying alimony, click here to visit our updated Modifications of Alimony Orders page.

Today’s discussion is intended for parties who want defend against a petition to modify alimony If you are more interested in being the one to file a petition to modify or eliminate alimony, please take a look at Kelly’s other video on that subject.

Could You Please Give Us A Roadmap For Our Discussion Today, For When Someone Wants To Defend Against A Petition to Modify or Eliminate Alimony?

You bet. I’ll be talking today about the legal standards that have to be met of what the other side has to do to make a change, either to eliminate or to lower alimony. Next, we’ll be talking about the nuts-and-bolts procedure of the specific steps you have to do to make your defense. We’ll be talking about negotiations and mediation with the other side, and how and when to try to settle. Finally, we’ll be talking about how to actually prove what you need to prove in order to be successful.

What Does Someone Have To Prove In Utah In Order To Eliminate Or Lower Alimony?

Some things are automatic. Alimony automatically ceases if the recipient remarries, if either party dies, or if the recipient is openly cohabiting or living romantically, most of the time with a new partner. Otherwise, generally, the other side has to show that there’s been a significant and material change in circumstances not contemplated in the decree. Although this isn’t a complete list, in most cases, changes of circumstances look like this, a significant increase in the recipient spouse’s income or a significant decrease in their monthly expenses. It could also be a significant decrease and the paying spouse’s earnings or earning ability. In many cases, the retirement of the paying spouse or significant medical issues of the paying spouse can constitute a material change of circumstances. As we discussed earlier, a change in circumstances can be when the alimony recipient is cohabiting.

What Qualifies As Cohabiting?

Cohabiting means to be living together or residing together on a regular basis in the same residence and in a relationship of a romantic or a sexual nature. If you are cohabiting, alimony should generally cease, so you need to be very careful before you take on a relationship like that and know what the consequences are. In 2020, the Utah Supreme Court said in Scott v Scott that if parties were living together more than half the time for a period as little as 42 days, that was sufficient to constitute cohabitation. So, be very careful before making that choice.

Can I Just Settle Things Without Having To Go To Court?

Absolutely. The timing of when you mediate is significant. If you mediate earlier and you’re able to reach an agreement, glory, hallelujah, you’ve just saved yourself a bunch of time, money and aggravation. But sometimes the other side is going into mediation with kind of an unreasonable expectation bubble. Their expectations are big and they’re unreasonable and you’re just not going to get through to them why things should change. If you go into mediation without a pin to pop that unreasonable expectation bubble, then you may have just wasted a day at mediation paying your attorney and the mediator just for the other side just to say, pound sand. A lot of folks decide “you know what- I do want to mediate, but I need a pin to pop that unreasonable expectation bubble first.” In other words, I need some leverage.

There are various ways to get leverage. As the party defending the other side’s petition, you’ve already got a good deal of leverage. You’ve already got a court order that’s in place until it’s changed. Until it’s changed, the other side needs to keep paying alimony, and if they don’t, you can file a motion to enforce or a contempt motion against them to make sure they keep paying, or else the court can sanction them. For a discussion on contempt motions or motions to enforce, please take a look at my other video on that subject.

There are other ways to get leverage, like going through the discovery process to get the evidence that you need, to convince the other side that going to trial might be a waste of time and money and maybe they ought to settle more reasonably.

What Are The Actual Steps You Need To Take To Defend Against A Petition To Modify The Alimony Award?

One thing you need to look at right from the beginning is whether or not there’s a prefiling mediation requirement. In many people’s divorce decrees, there’s a provision that says before you can go to court, before you can file a petition to modify you have to attempt mediation. If there is such a provision, and the other side files their petition before doing that, you can file a motion to dismiss their petition because they failed to follow the prefiling mediation order. You can also file a motion to dismiss if their alleged changes in circumstances are weak.

But let’s assume that either there’s no prefiling mediation requirement or you’ve already attempted mediation. At that point, the other side needs to draft and file with the court a petition to modify, alleging the kinds of things that we’ve talked about, and a summons and get those two things served on you. If you’re in the state of Utah, you’ll have 21 days to file an answer. If you’re out of state, the summons will be a 30 days summons. The service has to be done formally using a process server, unless you agree to accept service by signing a document saying, “hey, I’ll just accept service. I don’t need to be certified constable.”

After service has happened and the 21 days or the 30 days have elapsed, each side needs to provide the other with what’s known as their initial disclosures. This is your witness list of the witnesses that you know so far, and copies of the exhibits that if you had to go to trial tomorrow, here’s what I know would be an exhibit.

There’s a period of time that attorneys can conduct discovery to find out information to help bolster your case. I’ll be talking about that more in a bit

Tthen finally, trial. But the court won’t let trial occur unless the parties have attempted mediation at least once.

How Do I Show The Court The Decree Really Should Not Be Modified? How Do I Prove My Case?

Remember, it’s their burden to prove that there has been a significant and material change of circumstances justifying the change. So, hold them to that burden of proof. It’s not your burden of proof to show that it shouldn’t happen. It’s their burden of proof to show that it should.

But at this point, it might be helpful for you to know how alimony works. This table demonstrates how a court might arrive at an alimony calculation. The payor spouse, let’s suppose that they gross $10,000 a month. They have a 20% tax bracket, and so they net $8,000 a month. Let’s suppose that the recipient spouse grosses $4,000 a month, and their net, after deductions and so on, is $3,000 a month. Now let’s suppose that child support of $2,000 a month, is taken off of the payor spouse’s column and added to the recipient spouse’s column. Now, they have a subtotal for the payor spouse of $6,000 excess and $5,000 for the recipient spouse. But now you have to deduct their expenses. Let’s suppose they both have expenses of $6,500 a month. The payor spouse is now going to be in the whole $500 a month in the negative. The recipient spouse is going to be in the hole $1,500 a month.

The court is going to say, look, we’re going to divide the pain. Neither one of you can afford this divorce, but you’ve got to have a divorce anyway. Rather than having one side experience the pain of a deficit more than the other, we’re going to equalize it. Even though the payor spouse is $500 in the hole, we’re going to make them pay $500 a month in alimony anyway, because then both sides end up in the hole by $1,000 a month negative. That’s equal; that’s fair. If there isn’t enough money to pay both sides monthly needs, then the court will divide pain in this way.

But let’s suppose that the payor spouse makes $20,000 a month. Just for ease of calculation here today, let’s just say that the payor spouse has $16,000 a month, net. He has a subtotal of 14,000 excess after paying his expenses. Let’s just say his expenses are $6,000 a month for ease of calculation. Then he has an excess, a positive balance of $8,000 a month. Let’s leave everything else for the recipient spouse the same. Let’s suppose that the recipient spouse still has a deficit at the end of the day of $1,500.

At this point, the alimony would not be to equalize the party’s deficit. The alimony amount would simply be $1,500 to get her back to zero. The payor spouse is not going to have to pay more than what the recipient spouse’s monthly expenses are to get her back to at least zero. If the payor spouse can afford it, he’ll at least have to pay that amount.

The goal is to show that your expenses are high, the other side’s expenses are low, your income is low and the other side’s income is high. To show all of that, you’ll want to conduct what I call paper discovery to help bolster your case.

One form of paper discovery you might be familiar with is a Subpoena or a Subpoena Duces Tecum. An attorney can subpoena records, like bank records, credit card statements, employment records, loan applications, that sort of thing.

You get requests for admissions as well. Request for Admission are written in a document that you send to the other side that basically says, please admit X, please admit Y, please admit Z and the other party has to respond to that request for admission within 28 days. If they fail to make a response, then everything that you’ve asked them to admit becomes truth for purposes of the case, or even if they make a response, but it’s late. Some examples in an alimony case might include things like this: admit that your income or earning ability is currently significantly higher than it was on the date the decree of divorce was signed. Admit that you’re voluntarily underemployed, that you’re earning less than what you’re capable of earning. Or that you’re working fewer hours per week than what you’re able to work.

There are many more that can be used, and the other side has 28 days to respond with an answer. But again, if they let that deadline slip by, then the admission becomes truth for purposes of the case. If they deny the request for admission, and then you later prove that denial is false, then their credibility goes way down in the court’s eyes.

Interrogatories are another form of discovery that can be used. These are open ended questions that you can ask in writing and the other side has 28 days to respond open ended questions such as, describe in detail your income producing history since the date of the decree. What’s the contact information for your sources of income? What documentation is out there that could demonstrate it? Please give me a list of all your bank accounts and credit card accounts since entry of the decree, their account numbers, the contact information for the banks and credit card companies. What loan applications have you made since entry the decree?

A lot of times, Greg folks will sign a loan application to get a car or credit card or something. , and they will state their income in that sometimes folks exaggerate their income so that they can get a loan. Oftentimes, those loan applications are sworn under oath, and so they’re going to be stuck with that number. Particularly if, in defending a petition to modify, they claim that their income is much less than what they stated on that loan application. You can ask, please state in detail all the reasons you don’t work full-time. Requests should be specifically tailored to the needs of your case.

You also get requests for production of documents.These are like Subpoenas on the other side. Please provide me all your bank records from this date to this date. Please provide your credit card statements. Initially, 70% of what the other side sends back is going to be garbage. Objections, attempts to avoid really answering the question, that kind of thing. When that happens, you can file a motion called a Statement of Discovery Issues, explaining to the court, “hey, look, here was my discovery request. Here was their cruddy response, and here’s why judge, you should make them answer the question.” The court will look at that motion and make a decision. Very often, you’ll get much more information after you bring it to the judge’s attention how they’ve attempted to avoid answering X, Y and Z. In my experience, the court will give you about 50% of what you ask for.

One of the main things to prove your case is doing a super-duper income and expense analysis. The main documents you’re trying to get are those showing income and earning ability and those related to expenses. Again, you’re trying to show that your income is lower. Your expenses are higher. The other side’s expenses are lower and their income is higher. Now, the court will require a financial declaration, and that financial declaration says, here all the sources of my income. Here are all my expenses itemized out. Here’s three months of bank statements, my tax returns and things like that. A lot of people don’t take that document seriously enough. My staff and I really help our clients get this right, because it is key to an alimony case. For example, in the expenses you want to pay special attention to non-monthly expenses, not just the stuff monthly. Your Netflix bill is easy, but what about property taxes, oil changes, or other yearly or quarterly expenses, where you’ve got to total them up yearly, divide them by 12, reach a monthly average and then plug that in. That’s a lot of work that people, very often don’t choose to do. Once my staff look over it and help ensure that it’s complete, that it’s accurate. A lot of people don’t work hard enough on this assignment. They do the bare minimum for the financial declaration that in an alimony modification case. It is a legitimate strategy to outwork the other side.

One way that you do this is you would use something like Google Sheets or an Excel spreadsheet, and you’d give that spreadsheet all the same categories as the financial declaration, then you go through each and every expense for a one or two or possibly even three-year period, and you plug them all in. You break down all the credit card expenditures, the bank records, you separate them out into what was actually spent. If you do that, even though it’s a large amount of work, you are able to demonstrate to the court your expenses in a way that’s not fuzzy. The math speaks for itself. And the court looks at that and the methodology by which you went through and did that. They trust your document, and that bolsters your case. You want to do this not only for yourself, but for the other side doing that data crunching, data reduction and analysis. The other side when they haven’t gone through all of that effort, but you have, the court’s going to believe your numbers and not the other side’s. When I assist folks with this, I assign a paralegal to their case to help with this sort of thing, so they don’t have to do it all on their own. We have a system how to do it that makes it easier.

Are There Any Other Types Of Discovery That Can Be Done To Help My Case?

Although sometimes more expensive than paper discovery, sometimes a deposition of the other party or their spouse or someone else can be really helpful or even necessary. Depositions are very powerful forms of discovery. A deposition is when the other side receives a notice that says they’re required by law to show up at the attorney’s office at this date and time. The notice will indicate there’s going to be a court reporter, a stenographer present, at the meeting, who will put you under oath to tell the whole truth and nothing, but the truth. And the attorney is then allowed to ask questions for up to four hours, usually, but it can, under some circumstances, be even up to seven. Even if they object to a question, they still have to answer the question. It’s pretty hard to avoid answering questions for that long.

Another form of discovery is expert discovery. What if you need to demonstrate that you no longer have the ability to earn? What you used to earn, or what if you need to prove that the other party is capable of earning much more than what they are currently earning, or what they say they can earn? In that case, you can obtain a vocational assessment on yourself or on the other side. A vocational assessor is an expert, who can analyze someone’s education, training and work experience and write a report for the court about what that person’s earning capacity is based on statistical labor market data. If the other side refuses to participate, the court will usually grant your motion to force them to undergo a vocational assessment, so long as you offer to pay the initial upfront costs. The final allocation of those costs can be reserved for trial. A vocational assessment, either for you or for the other side, can be a crucial way to prove what you need to prove about earning capacity.

For high income cases, if the finances are super complicated, there’s a lot of businesses or lots of sources of income, or we have to value things very carefully, involving a forensic accountant to be an expert might be helpful. That person would analyze the records, write a report with an alimony analysis of here’s what the real income is after reading through all of these records and all of the business’s expenses and so on that might be a smart choice.

Can The Court Temporarily Change The Decree While We’re Waiting For Trial?

Although that’s theoretically possible. It’s usually not worth trying to get a temporary change. Once a petition to modify has been filed, the court can make retroactive adjustments back to the date the petition was filed. For example, if alimony is $1,000 a month and due to a change in circumstances, the payor spouse files a petition to modify and can only pay $250 a month until it gets to trial. That person would be accruing a $750 arrearage every month. If at trial, the court says, “I’m going to adjust alimony to $250 a month,” the court can do that retroactively all the way back to the date the petition was filed, thereby wiping out the arrearage that has accrued. If cohabitation has been proven at trial, the court can order the alimony recipient to return the alimony they received during the case, back to the date of the petition.

How Can An Experienced Family Attorney Like You Help?

We help ensure that the proper notices, petitions, summons are drafted. We help gather, organize and present the evidence. Help with negotiations, help figure out what kind of discovery is going to be needed and help presenting the case to court effectively. We also give counsel on what settlement negotiations to engage in and when and how.

I’m here with experienced Family Law Attorney, Kelly Peterson, who assists clients in defending against petitions to modify alimony if this is an issue for you or someone you love, do not hesitate to contact Kelly Peterson’s office to see how he can help. He can be reached at the contact information listed on this site.

Still Have Questions? Ready To Get Started?

For more information on defending alimony modification petition, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (801) 616-3301 today.