1.
WHAT IS ALIMONY–
Alimony (also called spousal support) is
a court ordered payment made by one spouse to the other upon termination of the
marriage. The purpose for these payments
is to avoid any unfair financial consequences from the divorce. In Utah, the duration of alimony payments
will not exceed the length of the marriage, unless special circumstances
exist. If the parties were married 25
years, the court can order spousal support for up to 25 years. On the other hand, if a marriage only lasted
one year, the Court can only award alimony for up to one year, if it is ordered
at all. Alimony payments terminate upon
the remarriage or cohabitation of the recipient spouse. If cohabitation occurs the order must be
modified upon proof of the cohabitation.
We can help you file for a modification to terminate the order if the
other spouse does cohabitate. The Court determined alimony based on net income
after deducting reasonable and necessary expenses.
2.
CONSIDERATIONS – Typically,
the court will review the parties’ standard of living at the time of separation. If the duration of the marriage was short,
the court will likely restore the parties to the standard of living when the
marriage began. In cases where neither
party has sufficient income to meet their obligations, the court may look at
equalizing both parties current economic situation. According to statute, Utah courts may
consider the following factors to determine an award of alimony:
a. The financial needs of the recipient. (analysis of
budget)
b. The recipient’s capability to earn income. (employment
history, ability or inability to work or receive income, career put on hold to
raise children)
c. The payor’s ability to pay spousal support. (analysis
of budget)
d. The duration of the marriage. (alimony much more
likely in lengthy marriages)
e. Childcare duties of the recipient.
f. Whether the recipient earned income from a business
owned by the payor spouse during the marriage
g. Whether the recipient contributed to the payor’s
ability to earn income. (paying for education or allowing them to attend school
during the marriage)
h. The “fault” of the parties. Although alimony cannot be used to punish a
party, the following conduct ay be considered if it substantially contribute to
the failure of the marriage: Infidelity, domestic violence and abuse of the
spouse or children, threats of life-threatening harm, substantially undermining
the financial stability of the other spouse or minor children.
3.
MODIFICATION AND TERMINATION OF ALIMONY – Alimony may be terminated or modified at any time upon
a showing of a substantial change in circumstances which was not foreseeable at
the time of divorce. Either party may
petition the Court to modify the existing order. Generally, the court will not modify alimony
to address needs of the supported spouse that did not exist when the parties
divorced, unless there are special reasons to justify doing so. Typically, courts will not consider the
remarriage of the payor spouse as a “substantial change” to support a
modification of alimony. If the
recipient experiences a significant increase or decrease in income or financial
need, the court may reduce or terminate support payments. The court does have the discretion to
increase alimony as child support terminates upon the emancipation of minors
(best to include this in the original order).
4.
COHABITATION – If
you are petitioning the Court to terminate alimony due to cohabitation, you
must present credible and convincing evidence of the cohabitation. Private investigators are sometimes employed
to assist in gathering such evidence. The
cohabitation must be of a romantic nature.
For example, if your ex-spouse moves in with a roommate to share
expenses alimony will not be terminated unless you can establish they are in an
intimate relationship.
5.
ENFORCING ALIMONY – If the obligated party fails to pay alimony in accordance with the
court order, the recipient spouse may file a motion (Order to Show Cause)
asking the court to enforce payment. The
court can issue a judgment for the past due payments. If the noncompliant party is found to be in
contempt the court can also require the offender to pay a fine or serve a jail
sentence. Our office can assist you in
filing for an Order to Show Cause.
6.
EXPENSES CONSIDERED BY THE COURT – Expenses and obligations submitted to the Court should
be reasonable and necessary or they should not exceed the standard of living
you maintained during the marriage. In
most cases, you are best advised to be conservative and submit a Spartan
budget. Flamboyant expenses are discouraged in most cases. Generally speaking, a party may not include
contributions to savings accounts, retirement accounts or investments as
expenses for purposes of determining alimony unless the parties regularly
engaged in the practice of funding these accounts during their marriage. See Bakanowski
v. Bakanowski, 80 P.3d 153 (Utah App. 2003).
Expenses for a child’s extracurricular activities may not be considered
as a necessary expense for determining alimony See Farnsworth v. Farnsworth, 288 P.3d 298 (Utah App 2012).
7.
TAX CONSEQUENCES – Alimony payments are tax deductible for the payor. On the
other hand, If you are receiving alimony, the IRS will tax the payments you
receive as income.
Do you need to fight for or
against an alimony claim?
Do you need to contest or modify an alimony claim or
order?
Call Attorney Troy R. Jensen – 801-612-2112 – JENSEN
LEGAL
KNOW THE LAW, KNOW YOUR RIGHTS, KNOW I WILL FIGHT FOR YOU!
