Spousal Support (Alimony)

Alimony can be determined at trial (by the court), or during negotiations (by the parties). The parties typically negotiate based on what the court would do.

Utah Statutory Provisions on Alimony:

Statute UCA § 30-3-5 sets forth the factors that the court is required to consider to determine alimony:

(8)(a) The court shall consider at least the following factors:

(i) the financial condition and needs of the recipient spouse;

(ii) the recipient’s earning capacity or ability to produce income;

(iii) the ability of the payor spouse to provide support;

(iv) the length of the marriage;

(v) whether the recipient spouse has custody of minor children requiring support;

(vi) whether the recipient spouse worked in a business owned or operated by the payor spouse; and

(vii) whether the recipient spouse directly contributed to any increase in the payor spouse’s skill by paying for education received by the payor spouse or allowing the payor spouse to attend school during the marriage.

(b) The court may consider the fault of the parties in determining alimony.

(c) As a general rule, the court should look to the standard of living, existing at the time of separation, in determining alimony in accordance with Subsection (8)(a). However, the court shall consider all relevant facts and equitable principles and may, in its discretion, base alimony on the standard of living that existed at the time of trial. In marriages of short duration, when no children have been conceived or born during the marriage, the court may consider the standard of living that existed at the time of the marriage.

(d) The court may, under appropriate circumstances, attempt to equalize the parties’ respective standards of living.

(e) When a marriage of long duration dissolves on the threshold of a major change in the income of one of the spouses due to the collective efforts of both, that change shall be considered in dividing the marital property and in determining the amount of alimony. If one spouse’s earning capacity has been greatly enhanced through the efforts of both spouses during the marriage, the court may make a compensating adjustment in dividing the marital property and awarding alimony.

(f) In determining alimony when a marriage of short duration dissolves, and no children have been conceived or born during the marriage, the court may consider restoring each party to the condition which existed at the time of the marriage.

(g) (i) The court has continuing jurisdiction to make substantive changes and new orders regarding alimony based on a substantial material change in circumstances not foreseeable at the time of the divorce.

(ii) The court may not modify alimony or issue a new order for alimony to address needs of the recipient that did not exist at the time the decree was entered, unless the court finds extenuating circumstances that justify that action.

(iii) In determining alimony, the income of any subsequent spouse of the payor may not be considered, except as provided in this Subsection (8).

(A) The court may consider the subsequent spouse’s financial ability to share living expenses.

(B) The court may consider the income of a subsequent spouse if the court finds that the payor’s improper conduct justifies that consideration.

(h) Alimony may not be ordered for a duration longer than the number of years that the marriage existed unless, at any time prior to termination of alimony, the court finds extenuating circumstances that justify the payment of alimony for a longer period of time.

Most Important Alimony Factors:

For determination of alimony, the most important factors are the “Jones factors” (from the Jones v. Jones case, 1985, 700 P.2d 1072):

– Financial needs and conditions of recipient spouse

– Ability of recipient spouse to provide for themselves

– Ability of payor spouse to provide

The court may also consider things like health of the parties, marital standard of living, fault (affairs, abuse, etc.)

How Courts Typically Handle Alimony Questions:

The court must make adequate “findings of fact” regarding each factor that it considers. The court determines the financial needs of the parties based on evidence submitted at trial.

Before awarding alimony, court generally divides property and sets child support first and sets debt, because debt plays into ability to pay.  The reason for this is that it is difficult to tell what payor’s ability to pay will be or recipients needs will be until doing so.  If the payor is paying child support to recipient, the court’s calculations will assume that his/her income is reduced by amount of child support but will not assume that recipient’s income has been increased by that amount.

Payors of child support are often surprised that they have to pay spousal support even though they cannot meet their own obligations. The Bader vs Bader case explains why:

Defendant attacks the foregoing requirements as inequitable and as placing an insuperable burden upon him. That it is both burdensome and irksome is not to be denied, particularly if one accepts his figures as to how he must spend his money. However, the trial court is obliged to see the situation with equal concern for the wife and dependent children. This is simply one of those all-too-frequent situations where the court was confronted with the impossible task of attempting to cut one blanket to cover two beds and satisfy both parties when the truth of the matter is that they cannot afford a divorce, but must have one anyway.  Bader v. Bader  18 Utah 2d 407, 408, 424 P.2d 150, 151 (Utah 1967)

Sometimes, there is no abundant income to divide, so the court does decides to divide pain. In this type of case, the court will create a situation where it realizes that both parties’ expenses will exceed their income but wants each party to fall short by same amount.

The court has enormous discretion in making an alimony award. Because of that discretion, judges rulings are all over the map on this issue. This can be frustrating to parties because they often cannot predict what will happen.

Reasons for Alimony:

The primary reasons for awarding are:

– to prevent the recipient spouse from becoming a public charge and

– to equalize the standards of living between the two as much as possible.

However, when a marriage was of short duration, the court may choose different goals such as to rehabilitate a spouse, for example, by getting them through school so they can provide for themselves.

The purpose, in the short term, is to close gap between incomes so the receiving spouse better able to support themselves by the time the rehabilitation term ends.

Length of Alimony:

Alimony generally may not last longer than the length of the marriage.

Different judicial districts in Utah have different habits:

– 3rd district judges routinely award for the length of the marriage.

– 4th district used to rule that way, but more recently local attorneys have come to expect half the length of marriage as a starting point. The 4th district is less rigid about awarding it for length of marriage.

Alimony terminates generally upon remarriage or death or cohabitation of receiving spouse. Cohabitation means living together in a romantic relation.

Modification of Spousal Support:

Spousal support can be modified if there has been a significant change in circumstance that was unforeseen at time of original alimony determination.

A significant change in payor spouse’s life is not a significant change if it could have been contemplated at time of divorce.

Usually, support can be modified if there has been a vast increase or involuntary decrease of either spouse’s income. The court will generally impute what a party has ability to make, even if he/she chooses not to make this much money.

Significant health problems unforeseen at original determination can be the basis for modification of alimony.

Lump Sum Alimony:

The court has discretion to award a single large payment in a lump sum. This kind of award can be taken from payor spouse property. The court tends to award a lump sum when there will be difficulty in collecting payments, for example if the payor spouse is moving back to a foreign country or has a historical track record of not making payments.

Family law lawyer Kelly Peterson can assist you with alimony questions and all other aspects of your divorce case. The earlier alimony attorney Kelly Peterson begins working on your case, the better your chances of obtaining a favorable outcome. Call (801) 616-3301 today to schedule an appointment.

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*Child Welfare Law Specialist Nat’l Assoc. of Counsel for Children