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Alimony in the State of Utah

There is no set formula for alimony in the State of Utah.  Alimony is governed by Utah Code 30-3-5.  The Utah Code states as follows:

What are the factors for alimony?

The court shall consider at least the following factors in determining alimony:

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

 

(ii) the recipient’s earning capacity or ability to produce income, including the impact of diminished workplace experience resulting from primarily caring for a child of the payor spouse;

 

(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 enabling the payor spouse to attend school during the marriage.

There are many consideration that the court using in determining alimony for the parties.  The more difference there is in income, the more likely the court will award some type of alimony.

How long do I need to be married to qualify for alimony?

            There is no set length, however alimony is normally for marriages of longer duration.  For shorter marriages, sometimes rehabilitative alimony is put in place for short periods of time to help transition to the divorce.

How do I know what my alimony amount will be?

            Because there is not set formula for calculating alimony, there are many different ways to calculate the amount.

  • One rule of thumb that may be helpful is that the combination of alimony and child support should not exceed one-half of the net income for the payor spouse.
  • Another way commonly used to set guideposts for alimony is to use equalization of net incomes of the party for a total support payment that is a combination of both alimony and child support. If one party is only employed part time, an imputed amount of income may be considered.
  • Another common way to determine alimony is to take the budgets of each parties on their Financial Declaration 26.1 Court Disclosures and to consider the needs and also the amount of potential surplus of each party.

How long will I pay alimony?

The court will not order alimony longer than the length of the marriage, unless there are extenuating circumstances.  However, the length of alimony is commonly negotiated between the parties to a shorter duration than the length of the marriage.

Utah Code 30-3-5(8)(j) explains the extenuating circumstances for awards that exceed the length of the marriage, “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.”

When does alimony terminate?

            According to Utah Code 30-3-5(9) & (10) alimony terminates upon the receiving party’s remarriage, cohabitation, or the death of either party.

The Utah Code 30-3-5(9) & (10) explain about the termination of alimony as follows:

(9) Unless a decree of divorce specifically provides otherwise, any order of the court that a party pay alimony to a former spouse automatically terminates upon the remarriage or death of that former spouse. However, if the remarriage is annulled and found to be void ab initio, payment of alimony shall resume if the party paying alimony is made a party to the action of annulment and the payor party’s rights are determined.

 

(10) Any order of the court that a party pay alimony to a former spouse terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person.

 

Therefore, alimony terminates automatically upon the remarriage of the receiving spouse.  Alimony may be reinstated after remarriage only if the receiving spouse gets an annulment and the payor spouse of alimony is made a party to the annulment.  For cohabitation, the court must order the termination of alimony or the parties must stipulate to the termination of alimony.

 

Case Law for Alimony: There has been significant case law in the State of Utah which has changed the alimony considerations.

Sellers v. Sellers, 2010 UT App 393 (Utah Court of Appeals December 30, 2010). Was a significant case.  The court held that alimony cannot exceed the need of the Recipient spouse.  Thus, part of the alimony calculation is to fill out a budget on the Financial Declaration submitted to the court.  You can access a financial declaration at this link.   The court stated in the Sellers Case, “Regardless of the ability of the payor spouse to pay more, the recipient souse’s need must constitute the maximum permissible alimony award.”

Hawks v. Hawks, 2009 UT App. 149, (Utah Court of Appeals, June 4, 2009).This case held that the recipient spouse’s income can be imputed when calculated alimony.  Imputation is when the court uses the party’s ability to earn in the calculation.  For example, if one of the parents stayed home to be with the children, they could still be imputed income even though they are not currently working.  The parent has an ability to earn even though they choose not to work.  For people that do not have significant work experience or any type of technical or college education, most court’s find a person can at least make minimum wage which is currently $1,257.00 per month.  For parties that cannot agree on earning capacity, a vocational assessment can be ordered by the court which will determine the parties earning capacity.

Fish v. Fish, 2010 UT App. 292, (Utah Court of Appeals October 21, 2010). This case reaffirmed the previous findings of the court and held that imputation needs sufficient findings and alimony cannot exceed the need.

 Black v. Black, 199 P.3d 371, 2008 UT App. 465, (Utah Court of Appeals, December 18, 2008). This Utah Case regarding alimony found that the court can terminate retroactively terminate alimony.  Thus, for example, if a person is cohabitating, the court can terminate alimony at the time of the cohabitation even if that time was in the past.  Thus, the court has the power to change the alimony award in the past, present and the future.

Who pays the tax on alimony?

The recipient spouse is taxed on alimony and the receiver spouse receives a deduction for alimony.  This is why high income person’s who are divorcing may want to consult an accountant regarding their tax bracket and potential savings when paying alimony.

 

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