James R. Balmforth: Is Alimony Mandatory In Utah?

No. Alimony in not mandatory in Utah, but you may be able to receive it or you may have to pay it.

Spousal support is not mandatory in most states but can be ordered by a judge under certain circumstances. If a spouse will face hardships without financial support, spousal support should be considered. The deciding factor for spousal support is the need to maintain the spouse at his or her customary standard of living. In other words, the law recognizes a husband or wife should not be forced to live at a level below that enjoyed during the marriage. However, other factors also need to be considered. For example, spousal support should most likely not be considered if:

• The marriage was for a short duration (less than two or three years), and

• Both spouses are employed and self-sufficient.

Spousal support has variable timeframes. It can be for an unlimited period, subject to the death or remarriage of the recipient spouse, or fixed to end on a specific date. Child support payments do take priority over spousal support. There is no firm dollar figure for spousal support. The amount should be decided by both parties. Some common ways of calculating spousal support are to take up to 40% of the paying spouse’s net income (post-child support), less 50% of the amount of the supported spouse’s net income (if he or she is working). Spousal support can be waived by the recipient spouse. However, the waiver should be in writing and signed by both spouses.

Therefore, to summarize the grounds on which the alimony can be denied are as follows:

• If the Wife is earning enough to maintain herself

• If the wife is in an adulterous relationship

Anyhow, this shall not affect the maintenance rights of the children. As per the provision under the Law, the daughter is liable to get maintenance till she is married and the son is liable to get maintenance till the age of 18 years. Alimony is not an automatic matter of consideration by the Court; rather it comes to the scene only after the wife has applied for it. There are basically four ways by which alimony can be granted the following;

• Rehabilitation Alimony: If the wife is not financially independent, or does not have any means to earn all by herself to maintain herself, then in such a situation, the Court grants alimony order. Where the wife is educated enough and is capable to find a job and maintain herself, then in such a situation, the Court shall instruct the wife to look for a suitable job and shall be liable only till the wife settles down financially. There is no set time for rehabilitative alimony to end, and it is determined based on the individual situation. This type of alimony will likely be reviewed at intervals to check on the progress of the recipient.
• Permanent Alimony: Permanent alimony is when the payments are to continue indefinitely. There are many reasons that a judge would order this type of alimony. One situation may be if the recipient is handicapped and unable to work and become self-sufficient. If the recipient married without ever gaining employment skills, and has never worked but has raised children and taken care of the home, this recipient may be entitled to permanent alimony. Usually, permanent alimony will not stop unless one spouse dies, the recipient gets remarried or cohabitates with someone else.

• Reimbursement alimony: In the situation where one spouse worked to put the other spouse through college or a work related program which resulted in this spouse earning more money reimbursement alimony may be awarded. Typically, the alimony will continue until the cost or half of the cost of schooling has been paid back.
• Hefty Alimony: In this kind of alimony, the spouse is ordered to pay lump-sum alimony will not be required to pay any other type of alimony to the recipient. In certain cases, you cannot avoid paying alimony totally, but the amount can be reduced with the strategically argument of a skilled lawyer.

Basics of Alimony

Ability to Pay: Courts always consider a person’s ability to pay when setting his alimony obligation. A court looks at the payer’s gross income from all sources (wages, public benefits, interest and dividends on investments, rents from real property, profits from patents and the like, and any other sources of income), less any mandatory deductions (income taxes, Social Security, health care and mandatory union dues). The result is the payer’s net income. In most states, deductions for credit union payments and wage attachments are not subtracted when calculating net income. The reason for this rule is that the law accords support payments a higher priority than other types of debts, and would rather see other debts not paid than have a spouse go without adequate support.

Ability to Earn: When a court computes the amount of alimony to be paid by a spouse, both parties’ ability to earn is usually taken into account. Actual earnings are an important factor in determining a person’s ability to earn, but are not conclusive where there is evidence that a person could earn more if she chose to do so. Some states, however, set alimony payments based only on actual earnings that is, the ability to pay.
Ability to Be Self-Supporting: The ability of an ex-spouse to support herself is normally considered by a court when setting the amount and duration of alimony to be paid to that spouse. A court looks to whether the ex-spouse possesses marketable skills and whether she is able to work outside the home (having custody of pre-school children and not having access to day care could make this impossible). The ability to be self-supporting differs from actually being self-supporting. If a spouse has marketable skills and is able to work outside the home, but has chosen not to look for work, the court is very likely to limit the amount and length of alimony. In many states, no alimony is awarded if both spouses are able to support themselves. If, however, one spouse was dependent on the other for support during the marriage, the dependent spouse is often awarded alimony for a transition period or until she becomes self-supporting. If a spouse receiving alimony becomes self supporting before the time set by the court for the alimony to end, the paying spouse can go to court and file a request for modification or for a termination of alimony. Conversely, if at the end of the support period the ex-spouse does not have the ability to support herself, she may request an extension of alimony, which may be difficult to obtain.

Standard of Living During Marriage: When a court sets alimony, it often considers the family’s pre-divorce standard of living and attempts to continue this standard for both spouses. If only one spouse worked outside the home and in many marriages where both spouses worked outside the home, it is usually impossible to continue the same standard of living for both people after the spouses have gone their separate ways. Maintenance of the same standard of living is therefore more of a goal than a guarantee.
Length of Marriage: When a marriage is relatively short approximately three years or fewer and no children were born or adopted, courts often refuse to award alimony. If there are children under school age, however, alimony may be awarded to the parent given physical custody because the court wants to enable the custodial parent to care full-time for the child.

Tax Consequences of Alimony: For federal income tax purposes, alimony paid under a written agreement or court order is deductible by the payer and is taxable to the recipient. Child support, on the other hand, is tax-free to the recipient but not deductible by the payer. In the past, when ex-spouses had more flexibility in negotiating the amount of child support and alimony, many ex-spouses agreed to greater alimony and less child support because of the resulting tax advantage to the payer. Because all states determine the basic child support obligation by formula, however, shifting the amounts of child support and alimony to take advantage of tax deductions is increasingly difficult.

Debts: Upon divorce, the court allocates debts incurred during marriage between the spouses based on who can pay and who benefits most from the asset attached to the debt. If the court orders a spouse to pay a large portion of marital debts, it often reduces the amount of alimony that spouse is ordered to pay.

Agreement Before Marriage: Before a couple marries, the parties may make an agreement concerning certain aspects of their relationship, including whether alimony will be paid in the event the couple later divorces. These agreements are also called ante-nuptial, pre-nuptial or pre-marital agreements. They are usually upheld by courts unless one person shows that the agreement is likely to promote divorce (for example, by including a large alimony amount in the event of divorce), was written and signed with the intention of divorcing or was unfairly entered into (for example, a spouse giving up all of his rights in his spouse’s future earnings without the advice of an attorney).

Lump Sum Support: In several states, a spouse may pay his total alimony obligation at the time of the divorce by giving the other spouse a lump sum payment equal to the total amount of future monthly payments. This is another term for lump sum support. Occasionally, alimony obligations are paid less frequently than monthly. This is called periodic support. Traditionally, periodic support was paid until the recipient died or remarried. Today, however, because alimony is usually paid for a fixed period, periodic support is more like lump sum support divided over a few periodic payments. Upon divorce, couples commonly enter into a divorce agreement which divides marital property and may set alimony. The agreement is called integrated if the property settlement and alimony payments are combined into either one lump sum payment or periodic payments. Integrated agreements are often used when the marital property consists of substantial intangible assets (for example, future royalties, stock options or future pension plans) or when one party is buying the other’s interest in a valuable tangible asset (for example, a home or business). In addition, if a spouse is entitled to little or no alimony, but is not financially independent, periodic payments may help that spouse gain financial independence.

When parties are unable to agree on a modification of alimony, the party wanting the change will have to file a request for a modification of alimony with the court. She must usually show that circumstances have changed substantially since the time of the previously issued order. This rule encourages stability of arrangements and helps prevent the court from becoming overburdened with frequent and repetitive modification requests. Below are several examples of a change of circumstances.

• Change in law: When a law affecting alimony is amended or a new law enacted, this by itself can sometimes constitute the changed circumstance necessary to file a request for modification of a prior alimony order.

• Cohabitation: In some states, an alimony recipient who begins cohabiting (usually living intimately with a person of the opposite sex but a few courts have applied this rule to women who begin living with female lovers) is presumed to need less alimony than originally awarded. If the recipient objects, it is her burden to show that her needs have not decreased.

• Cost of living increase: When inflation reduces the value of alimony payments, the recipient may cite her increased cost of living as a changed circumstance and request an increase.

• Decrease in income/decreased ability to pay/loss of job: When an ex- spouse paying alimony suffers a decrease in earnings, she may be able to obtain from the court a downward modification of alimony. The modification may be temporary or permanent, depending on her prospects for new work or increased hours.

• Decreased need for alimony: When a former spouse’s need for alimony decreases or ceases, the court may reduce or terminate the alimony if the paying spouse files a request for modification. Such a request can be made if the alimony recipient gets a job, an increase in pay or sometimes if she begins intimately living with someone of the opposite sex (cohabiting).

• Disability: Disability in family law generally means the inability to earn enough income to support oneself through work because of a physical or mental condition. A temporary disability suffered by a person paying alimony may warrant a temporary decrease of alimony. A permanent disability may warrant a request for modification of alimony based on changed circumstances. Similarly, if a recipient of alimony becomes disabled, a court may order an increase if her earnings decreased or her expenses increased (for example, health care or child care) as a result.

• Financial emergency: A financial emergency occurs when a person is unexpectedly required to lay out money (for example, to pay sudden medical bills). When a person who pays alimony suffers a financial emergency, he may file a request with the court for a temporary decrease of alimony. When a person who receives alimony suffers a financial emergency, she may ask the court for a temporary increase.

• Hardship: Hardship means suffering or adversity. If compliance with a legal obligation would cause a hardship on a person or his family, he may be excused from the obligation. For example, a payer’s inability to meet an alimony obligation without great economic suffering himself is a hardship. If a court finds this hardship substantial, the payer may be relieved of all or a part of his support obligation for a temporary or indefinite period.

• Increase in income: When an alimony recipient’s income increases, her ex-spouse may file with the court a request for modification of the alimony, claiming that the changed circumstance means his ex-spouse needs less alimony. Whether the court will agree depends on the particular facts of the situation. When the paying spouse’s income increases, alimony may stay the same if the recipient’s needs are being met. If her ex did not have the ability to pay enough alimony to meet her true needs before the increase in income, however, a court might grant a request for a modification based on the increase.

• Medical emergencies: Medical emergencies that require large expenditures of money are the kind of temporary and catastrophic circumstances that may support a temporary modification of alimony. If the recipient suffers the emergency, the payer may be required to temporarily increase payments (if he is able). Likewise, if the payer is the one with the emergency, his duty to support may temporarily be eased by the court.

• New support obligation: When an ex-spouse paying alimony assumes a new legal support obligation (for example, adopts, remarries or has a child), the court may reduce the earlier alimony order if it would be a hardship to pay the prior alimony and meet the new obligation. On the other hand, if the new support obligation is voluntarily assumed (for example, helping to support stepchildren when there is no duty to do so), rather than required by law, a court is unlikely to order a reduction.
In theory, courts are supposed to refuse to retroactively modify an alimony obligation. This means if a person is unable to pay support, he may petition the court for a reduction, but even if the court reduces future payments, it should hold him liable for the full amount of support due and owing. Many courts, however, do not follow this rule. Although the courts will state that they refuse to make retroactive modifications, they frequently excuse the payers from some of the arrearages.

The courts’ reasoning is that if the recipients survived the months (or years) without the support, they truly can get by without it. Each installment of court-ordered alimony is owed and to be paid according to the date set out in the order. When an ex-spouse ordered by a court to pay alimony does not comply, the overdue payments are called arrearages or arrears. Because the majority of people ordered to pay alimony don’t, and a growing number of women who are awarded (but not paid) alimony are poor, many (but unfortunately, not enough) courts are becoming more strict than they were a few years ago about enforcing alimony orders and collecting alimony arrearages. A wage attachment is a court order requiring an employer to deduct a certain amount of money from an employee’s paycheck each pay period in order to satisfy a debt. Wage attachments are often used to collect alimony or child support arrearages and to secure payment in the future.