Once A Petition To Terminate Alimony Is Filed In A Utah Court, What Are The Next Steps?
Once the Petition to Terminate Alimony is filed, a summons in a Petition will need to be served on your ex-spouse. Depending on whether they live in Utah, they will have up to 21 or 30 days to respond and file an answer to the petition. If they do not file an answer, they may be defaulted and an order of termination may be quickly obtained. If their answer denies cohabitation, the discovery process can then begin.
Under What Circumstances Can I Modify An Alimony Award?
A Petition to Modify Alimony may be filed if there has been a significant and material change in circumstances regarding the parties’ relative financial positions that was not foreseen at the time of the divorce.
For example, if the recipient spouse’s income has greatly increased, or if the alimony obligor’s income and earning ability have significantly decreased involuntarily, a significant change in circumstance may be found. One important, precedent-setting case in this area of law is Throckmorton v. Throckmorton, 967 P. 2D 121, [app. 1988], which states, “A relative change in the income and expenses of the parties, if comparatively significant, can amount to a substantial change in circumstances justifying modification of a prior alimony award.”
It’s important to note that a part of the qualification of changed circumstances is that that these changes would not be foreseeable at the time that alimony was set. What “foreseeable” actually means in this context is subject to interpretation. Utah case law has historically held that changes in circumstances would not be deemed foreseeable unless they were specifically mentioned in the court’s record, preferably in the decree of divorce itself.
However, in 2018, a Utah Supreme Court case referred to as MacDonald held that the Utah statute should be interpreted in a different way. MacDonald essentially interpreted the Utah statute in a way that flips the burden of proof onto the petitioner, who is now required to demonstrate evidence from the record of non-foreseeability. In other words, it created a nearly impossible burden of proving a negative.
This made it particularly difficult to prove an unforeseeable change in circumstances if the parties had agreed to the terms of their divorce decree. For several years, stipulated decrees were very difficult to modify.
Fortunately, in 2021 the Utah legislature changed the statute to be interpreted the way it had previously been interpreted, and to essentially nullify the MacDonald decision. The language of the new statute says the court may “make substantive changes and new orders regarding alimony based on a substantial and material change in circumstances not expressly stated in the divorce decree or in the findings that the court entered at the time of the divorce decree”.
The legislature has also changed the statute to make it easier for retirees to modify alimony based on retirement. To this end, the new statute states, “A party’s retirement is a substantial and material change in circumstance that is subject to a petition to modify alimony unless the divorce decree or findings… expressly states otherwise”.
So, in summation, in some circumstances, alimony may be modified, reduced, or even terminated. These circumstances include many different types of substantial material changes, including retirement.