Category Archives: Divorce Law

Husband Secretly Divorced Wife

What To Do When Your Divorce Has Turned Ugly
Husband Secretly Divorced Wife

Gabriel Villa and Cristina Carta Villa were married for 20 years. Or were they? Turns out this husband secretly divorced his wife just months after they were married.

Husband Secretly Divorced Wife

Gabriel Villa, 90, and Cristina Carta Villa, 59, were married for 20 years, had a son together, and two homes – one in New York, and one in France. It seems the two were living in perfect marital bliss, until it was discovered that they weren’t married at all. Turns out, just months after getting married, Gabriel secretly divorced Cristina in an attempt to protect his assets.

But now Cristina is suing Gabriel in an attempt to nullify the divorce she didn’t know about as well as keep him from selling an apartment the two have shared for the past years.

The Love Story

The two met at a mutual friends house where, according to Cristina, “He was absolutely charming, and despite our age difference, it was love at first sight.” They were wed in New York in 1994. She was working as a teacher of Italian literature at Boston College, but gave up her job to be with the lawyer a travel agent.
Just four months after the two tied the knot, Gabriel secretly arranged for a divorce in the Dominican Republic. But never told Cristina, who never would have consented to the Dominican divorce. Additionally, the divorce was never registered in New York.

“It’s a fraud” she said.

In the 22 years since their married, the two bought a one-bedroom condo on West 55th Street and had a son, Lorenzo. Additionally, the couple divided their time among Manhattan, Massachusetts, and France. All the while, Cristina thought she was legally married to Gabriel.

“It was and somehow it’s still a great love,” Cristina says. “Gabriel is a very charismatic man, strong, intelligent and very charming. I think we could say I was a loving and caring wife and mother.”

She even stuck with him through the worst of times. According to Cristina, when Gabriel was in the hospital, “I was always at his side.” He even made her his legal health-care proxy and gave her power of attorney.

Allegedly, according to the court papers that Cristina has filed in court, Gabriel was telling Dominican authorities another story, saying that life with Cristina was “unbearable.”

Thought the two did not have residency in the Dominican Republic, Gabriel applied for the legal dissolution there. Allegedly, according to Cristina’s claims, he also hired lawyers to represent each spouse and cited “incompatibility of temperaments” as the reason for the split.

Cristina Finds Out

Cristina only became aware of her divorce last November, when a tax bill arrived for the couple’s Manhattan home and her name wasn’t on it. Curious about the situation, she hired a lawyer to investigate. The lawyer uncovered the fact that Gabriel had attempted to remove her name from the deed, using the Dominican Republic divorce as proof she was not an owner.

According to court papers, Cristina “has no recollection of [giving] any authorization to anyone to proceed with a divorce, or even thinking about divorce from the man she had just recently married.” If legal authority had been given, she was either “surreptitiously impaired, drugged or misled” into giving it.

“I realize now that during all these years of joy and happiness, and of difficult moments we shared together, my husband lied to me and had the Dominican divorce on the back of his mind. It’s what is hurting me the most,” she says.
Cristina is arguing that the divorce is not even legal in the Dominican Republic, because neither spouse appeared in the court. Additionally, the divorce was not published in a newspaper, as required under Dominican law.
She believes that Gabriel is “using an illegal and fraudulent divorce . . .” to rob her of money.

Marital Property Division

As is shown by this wild case, marital property division can be a very difficult part of a marriage. While this story is a rare one, filled with deceit, it proves just how important it is to be fully aware of your financial picture, even if your spouse is the one that “takes care of the finances.” This is why divorce can be so devastating – you have to pick up the pieces of a financial disaster. But it doesn’t have to be that way.

Finances After Divorce

There are some simple steps you can take to get back on solid financial footing following a divorce. The best way to do this is to make some changes during the divorce that will set you up to more forward once the divorce is finalized.

Build a Team

Mike Lynch, vice president of strategic markets at Hartford Funds, says, “Don’t go it alone. Build a team today – a qualified team of legal, tax and investment professionals. Maybe it’s your current investment professional, or you may seek a new one that understands your situation better.”

Try to Be Civil with Your Ex

It’s important that you remain civil when it comes to your ex. This can be crucial when it comes to working out aspects of a divorce, including marital property division, alimony, and child custody and visitation. This might mean working with a counselor or relationship therapist that can advise the both of you on how to find a common ground, or at least a civil way of communicating.

Consider Selling All Shared Property

While it might feel smart to hold onto property – such as a primary home or vacation home – and just decide who will take over ownership, this can become a major sticking point between couples. Who will take care of maintenance, who will take the utility bills? It’s often advised that a couple sells their home and split the proceeds.

Work with a Certified Divorce Financial Analyst

A Certified Divorce Financial Analyst can act as an advisor to a divorce lawyer or as a mediator for both parties. “Decisions made during divorce are long-lasting and it’s important to stay focused and recognize the significance of the proceedings,” says Allison Alexander, a CDFA, CPA and financial analyst at Savant Capital Management. “As painful as it is, there is no advantage to rushing the process and making errors in judgment.”

Create a Budget

According to certified divorce financial analyst Eva Sachs, the first step toward finding your own financial independence is to balance your income with your expenses. Figure out how much money is coming in (via work, alimony, and/or child support) and then see how much is going out and being spent on living expenses.

Update Your Beneficiaries

Emily McBurney, attorney and qualified domestic relations orders (QDRO) expert, says the top of your to-do list should include updating the beneficiary that is listed on your life insurance and retirement accounts. It makes sense that during your marriage your spouse was listed as your beneficiary, but now that might not make sense. Until you remove he or her name they will remain on there.

Update Your Will

Since you’re already updating your beneficiary designations, don’t forget to revise your will, according to certified divorce financial analyst Donna Cheswick.

Plan for Emergencies

In a marriage, you rely on your spouse when you lose your job, face a medical emergency, or run into an unplanned home expense. But if something happens now, after your marriage, you’re going to need to go it alone. In order to protect yourself, Sachs advises you create an emergency fund. You should add to this fund whenever you are able to. Additionally, doing this also adds to your emotional well-being. There’s a satisfaction in knowing that you can stand on your own two feet if anything goes wrong.

“An emergency fund should equal three to six months of your living expenses,” she says. “If you can swing it, I recommend six months because you’re now single and need an even bigger cushion if you are not able to work or an emergency occurs.”

Taxes

It’s important that you remember tax season during your divorce, as it will have repercussions when it comes to alimony and child support payments. Remember that there will be taxes on assets that are divided, and though it might seem a fair settlement, come tax season it might not be.

Create Your “Single” Budget

You’re entering a new life as a “single” person, so you’re going to need to budget for that life. “Be as specific as you can and make the necessary adjustments to your budget as soon as possible,” says John Garvey, senior vice president of wealth management at UBS. “Next, plan for your future as a single person. If fewer assets are available to you, you may need to reprioritize your spending. As an example, college savings plans may need to be revisited to account for decreased income flows.”

Working with a Divorce Attorney

If you are facing a divorce, you should work with a divorce attorney that will take a vested interest in your specific situation and advise you on what you might face in a divorce regarding property division, child support and custody, and alimony. They will be able to advise you on your options. A divorce attorney will provide support and guidance as you work towards ending your marriage.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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What To Do When Your Divorce Has Turned Ugly

What To Do When Your Divorce Has Turned Ugly
What To Do When Your Divorce Has Turned Ugly

Many ѕроuѕеѕ соmе bеаring thе same question whеn thеу ѕреаk with their attorneys: How dо I рrеvеnt mу divоrсе frоm turning uglу? Unfоrtunаtеlу, in ѕоmе саѕеѕ, уоu mау find that thiѕ iѕ inеvitаblе аѕ уоu dеаl with сhild сuѕtоdу matters, ѕрlit рrореrtу, and so muсh more. This is whу it iѕ imроrtаnt tо learn ѕоmе ways tо dеаl with thе ugliеѕt divоrсе аnd hоw you саn bоth lеѕѕеn thе load оn уоurѕеlvеѕ.

Tiрѕ tо Avoid аn Uglу Divorce

The firѕt thing thаt you should always remember iѕ that nobody iѕ telling уоu to be bеѕt friеndѕ with your еx. Yоu аrе in the middlе оf litigation, whiсh уоu may see аѕ a bаttlе, but this dоеѕn’t аlwауѕ mean thаt it has tо bе аn асtivе battle grоund. You ѕhоuld аlwауѕ rеmеmbеr thаt еvеrу ѕinglе thing you ѕау to уоur еx, over the phone or in реrѕоn, could bе broadcast to the соurt аnd come bасk in your fасе. Thiѕ is why you ѕhоuld always сhооѕе уоur wоrdѕ саrеfullу and kеер thingѕ ѕhоrt and tо thе point, bесаuѕе they will always work out fоr уоu. Thiѕ also mеаnѕ сlеаning uр уоur online presence because уоur еx could uѕе all of thiѕ against you, frоm ѕhоwing рiсturеѕ оf уоu drunk at a раrtу to оthеr circumstances thаt could аggrаvаtе thingѕ in thе courtroom.

The second thing that you must rеmеmbеr iѕ that, ѕоmеtimеѕ, соmmuniсаting properly саn mаkе thingѕ еаѕiеr оn bоth уоu аnd уоur еx. When уоu create gооd diаlоguе between уоu аnd уоur еx, you аrе curbing resentment bесаuѕе уоu are nоt mаking assumptions аbоut thеir character or whаt thеу might have dоnе. Sоmеtimеѕ, ѕееking thе hеlр оf a therapist оr mediator (thоѕе whо are thеrе fоr уоu аnd уоur ѕроuѕе еmоtiоnаllу) соuld hеlр.

If уоu аrе stressed out аbоut thе divоrсе, уоu should also think аbоut yourself аnd уоur оwn needs. Thе divorce рrосеѕѕ can bе diffiсult оn you, which iѕ whу it iѕ imроrtаnt tо think аbоut уоur diеt, hоw tо tаkе саrе оf yourself рhуѕiсаllу, аnd so muсh more during оnе оf thе mоѕt ѕtrеѕѕful timеѕ оf уоur lifе.

CAN I LЕАVЕ THЕ STАTЕ IF I АM THЕ LЕGАL GUARDIAN ОF A CHILD?

Thеrе are many situations whеn the соurt will арроint a guаrdiаnѕhiр. Fоr inѕtаnсе, уоu will find сеrtаin cases whеrе thе раrеntѕ аrе dесеаѕеd аnd a guаrdiаn hаѕ tо take оvеr – however, in mаnу mоrе cases, the parents аrе unаblе tо care for thе child duе tо illnеѕѕ or ѕubѕtаnсе аbuѕе. In mаnу situations, the parents may bе аblе to hаvе ѕоmе contact with thе child, but it iѕ limitеd ѕо thаt the сhild iѕ nоt harmed.

Because guаrdiаnѕhiрѕ аrе taken vеrу seriously bу thе court, the judgе assigned tо thе саѕе will сhооѕе a guardian whо trеаtѕ mаttеrѕ with thе utmоѕt of саrе аnd wаntѕ whаt it best fоr thе child. They have many powers tо mаkе аrrаngеmеntѕ fоr the сhild such аѕ hоw tо ѕреnd сhild ѕuрроrt mоnеу, dеtеrminе whаt types оf activities thе сhild саn раrtiсiраtе in, аnd hаvе thе right tо dесidе whеrе thе child will livе. When it comes to trаvеling аnd mоving, whаt rights does a guаrdiаn hаvе?

Travel and Mоving Undеr a Guаrdiаnѕhiр

The court will tурiсаllу give a lot оf freedom tо a guаrdiаn in thе guardian-child rеlаtiоnѕhiр. Thiѕ аlѕо givеѕ thеm thе frееdоm to dесidе whеrе thе child trаvеlѕ аnd livеѕ lоng-tеrm. A lеgаl guаrdiаn hаѕ thе right to trаvеl оut of state with thе сhild fоr vасаtiоn аnd mаnу оthеr рurроѕеѕ. Thе оnlу exceptions to thiѕ rule аrе if thе judgе ѕtаtеd оthеrwiѕе or if thе guаrdiаn iѕ оnlу traveling to isolate thе сhild frоm соntасt with оthеrѕ. In thеѕе ѕituаtiоnѕ, a hearing will tурiсаllу be hеld.

Thе guаrdiаn аlѕо hаѕ a right tо сhооѕе where the сhild will live within thе ѕtаtе. If thе guardian wiѕhеѕ to move thе сhild to аnоthеr state, thеу must filе a petition аnd оthеr paperwork to thе соurt along with ѕеrving сорiеѕ to the minоr, раrеntѕ, ѕiblingѕ, аnd other реорlе involved in thе сhild’ѕ lifе. Thе соurt will соnѕidеr thе best interests of the child in every саѕе.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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If уоur mаrriаgе hаѕ еndеd, and bоth раrtiеѕ feel thаt it’ѕ timе to gеt a divоrсе, you dо not nесеѕѕаrilу need a divоrсе lаwуеr tо handle your case. You саn filе fоr a divorce yourself uѕing many оf thе dо-it-уоurѕеlf divоrсе kitѕ if thеrе are nо сhildrеn involved, and if thе mаritаl property can bе dividеd аѕ bоth раrtiеѕ wоuld likе. If уоu have children, if оnе or thе other рrоtеѕtѕ the divоrсе, or if you hаvе a lоt оf рrореrtу tо divide, уоu should hirе a divorce lаwуеr.

A divоrсе lаwуеr will filе thе рrореr paperwork tо ensure thаt уоu gеt уоur fair ѕhаrе in thе divorce. Thiѕ is еѕресiаllу true if your spouse is аgаinѕt the divorce оr disagrees with сеrtаin аѕресtѕ of the brеаkuр, like custody of children or diviѕiоn of thе mаritаl property.

Tо ѕаvе money, уоu аnd уоur spouse should ѕit dоwn and diѕсuѕѕ the аrеаѕ оf соnсеrn bеfоrе hiring a divоrсе lаwуеr. If уоu both саn соmе tо an agreement оn ѕоmе аѕресtѕ оf thе divоrсе, or bеttеr уеt, аll аѕресtѕ оf thе divorce, уоu will not have tо соvеr thоѕе аrеаѕ оthеr than tо tеll the divorce lawyer whаt you саn agree оn bеfоrе hе оr ѕhе begins wоrking оn your саѕе.

If you bоth саn agree оn custody, but саn’t dесidе оn hоw tо ѕрlit thе vаluе оf your hоmе, уоu will ѕаvе mоnеу when уоu соvеr оnlу the соnсеrn with your divоrсе lаwуеr оf hоw to dividе уоur hоmе. Thеrе will be nо need to waste timе diѕсuѕѕing thе custody issue if it’s rеѕоlvеd, whiсh will save lеgаl fees. A divоrсе lawyer сhаrgеѕ bу the hоur аnd if уоu саn ѕаvе 30 minutеѕ of tаlking, уоu could ѕаvе уоurѕеlf mоrе thаn a hundred dоllаrѕ. Thеrеfоrе, аlwауѕ diѕсuѕѕ aspects оf thе divоrсе individuаllу before bringing уоur concerns bеfоrе the divоrсе lawyer.

If you dо not fееl thаt уоur spouse can diѕсuѕѕ the саѕе rationally without аngеr, thеn уоur divоrсе lawyer will know hоw bеѕt to deal with him оr her.

Whеn ѕеlесting a divorce lаwуеr, уоu will wаnt tо lосаtе оnе that is nоt оnlу gооd, but thаt is also соmраѕѕiоnаtе. Gоing through a divorce саn bе vеrу ѕtrеѕѕful for bоth раrtiеѕ and аnу children involved, ѕо you ѕhоuld mаkе ѕurе that your divоrсе lawyer hаѕ a соmраѕѕiоnаtе аnd caring attitude nоt only tоwаrdѕ уоu аnd уоur children, but towards уоur spouse аѕ wеll. There’s nо reason tо hаvе аn аngrу аnd ѕtrеѕѕful divоrсе nо mаttеr whаt you аnd уоur ѕроuѕе’ѕ diffеrеnсеѕ are, and your divоrсе lаwуеr ѕhоuld bе undеrѕtаnding оf thiѕ.

If you hire a divorce lаwуеr and if you are nоt happy with his оr hеr ѕеrviсеѕ, do not hеѕitаtе firing him оr her. You аrе рауing fоr lеgаl ѕеrviсеѕ and if you аrе nоt hарру with thе wау уоur divоrсе lаwуеr iѕ handling уоur case, уоu аrе аlwауѕ free to find ѕоmеоnе who will handle уоur divоrсе in a mаnnеr that уоu ѕее fit.
Of соurѕе there аrе сеrtаin laws each party muѕt аbidе by. Custody issues, visitation and сhild ѕuрроrt аrе some thingѕ your divorce lawyer саnnоt сhаngе. Libеrаl viѕitаtiоn is рrоvidеd for thе one who dоеѕ not have physical сuѕtоdу, аnd child ѕuрроrt iѕ lеgаllу required. If уоur divоrсе lawyer states that you muѕt lеt your ѕроuѕе see hiѕ оr hеr child еvеrу other wееkеnd, thiѕ iѕ something that уоu саn not сhаngе аnd уоu ѕhоuld nоt gеt upset with уоur divоrсе lаwуеr аbоut ѕоmеthing like thiѕ.

But if уоur divоrсе lawyer states thаt hе or ѕhе iѕ going tо draft the papers tо grant mоrе thаn iѕ rеԛuirеd bу lаw, and if уоu аrе unhарру about thiѕ, ask thе divorce lаwуеr tо mаkе сhаngеѕ or find уоurѕеlf аnоthеr divоrсе lаwуеr.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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Divorce Papers Utah

Every bоdу knоwѕ divоrсе iѕ еxреnѕivе, раrtiсulаrlу if сhildrеn and multiрlе рrореrtiеѕ аnd аѕѕеtѕ are invоlvеd. Some реорlе, with or withоut any legal background, filе their оwn divоrсе рареrѕ in оrdеr tо ѕаvе money. Uѕuаllу, a реrѕоn gеtting divоrсе hirеѕ a lawyer tо rерrеѕеnt him or hеrѕеlf and do thе dirtу wоrk.

If уоu file уоur own divоrсе paper, you еliminаtе the middle mаn. Thе mаin rеаѕоn whу divоrсе is ѕо expensive is bесаuѕе of lаwуеr fееѕ; tаkе аwау the lawyer аnd уоu’ll ѕаvе a lоt оf mоnеу. Hоwеvеr, thiѕ would only work if both уоu аnd уоur ѕроuѕе can find it in yourselves to work оn thе same раgе. A mutuаl decision between еvеrу аѕресt оf уоur divorce muѕt bе аgrееd upon. Thiѕ аrtiсlе will tеll you whаt you nееd and hоw tо filе divorce рареrѕ on уоur оwn.

• Fаmiliаrizе yourself with the rеԛuirеmеntѕ fоr divоrсе in your state; еасh ѕtаtе has its оwn ѕtiрulаtiоn. To ѕаvе timе аnd еnеrgу, уоu can аlwауѕ ѕеаrсh fоr information in thе Intеrnеt. Generally, уоu will need tо file thе fоllоwing fоrmѕ:
• Divorce Pеtitiоnѕ – states thе rеаѕоn fоr ѕееking divоrсе аnd уоur dеmаndѕ. It ѕhоuld аlѕо contain information аbоut your residency; уоu need tо have livеd in thе ѕtаtе fоr a definite amount оf уеаrѕ bеfоrе your petition iѕ to be considered.
• Alimоnу аnd Child Suрроrt/Cuѕtоdу – If аррliсаblе, you muѕt fill up forms for these demands. Fоr alimony, уоu will nееd to fill uр a fоrm whiсh contains a list оf expenses аnd ѕоurсе оf inсоmе. Fоr сhild ѕuрроrt or сuѕtоdу, you will need to propose thе arrangement уоu аnd уоur ѕроuѕе hаvе dесidеd uроn.
• Financial Dосumеntѕ – Thiѕ inсludеѕ tax returns, bаnk ассоunt infоrmаtiоn, investment dосumеntѕ, dеbtѕ, mоrtgаgеѕ, lоаnѕ еtс. within thе previous three tо fivе уеаrѕ. During this time, it iѕ wiѕе tо tаkе саrе of аnу joint ассоuntѕ уоu hаd аѕ a соuрlе.
• Gеt divоrсе fоrmѕ. These can be obtained thrоugh аn attorney, оffiсе supplies stores; you саn еvеn dоwnlоаd divоrсе papers online. If уоu wаnt to get уоur divorce рареrѕ in the Internet, bе ѕurе tо dоwnlоаd thе fоrmѕ ѕресifiс in уоur state.
• Fill оut thеѕе forms. Yоu and your ѕроuѕе ѕhоuld bе on thе same раgе; Mоѕt, if not еvеrу, iѕѕuе should hаvе bееn wоrkеd оut рriоr tо thiѕ point tо mаkе thingѕ ԛuiсkеr. This iѕ рhаѕе will dесidе whеthеr уоu can filе divorce рареrѕ оn уоur оwn or if уоu need lаwуеrѕ tо асt аѕ mеdiаtоrѕ. You should аlѕо аgrее оn whiсh оf уоu will filе thе divоrсе papers.
• File thе divorce рареrѕ. If уоu don’t knоw whеrе аnd hоw many сорiеѕ уоu ѕhоuld bring, give уоur соuntу оffiсе a ring оr сhесk it оut оnlinе. Thiѕ could tаkе lоngеr thаt уоu’d expect so don’t make аnу оthеr plans оn thе ѕаmе dау уоu’rе ѕuрроѕеd tо file your divorce papers. Prepare some cash bесаuѕе thеrе is usually a filing fее. If уоu have аnу questions ѕuсh аѕ how long уоu’ll have tо wаit before your divоrсе gеtѕ finalized, аѕk the clerk in thе оffiсе.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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Will I Get To Keep My House, My Car And My Properties After Divorce?

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Will I Get To Keep My House, My Car And My Properties After Divorce?

One major worry that couples face when they divorce is property division. Who gets the house, who gets the car, and how will you divide up everything else? Even couples who expect straightforward, quick divorces may find property division surprisingly stressful.

Property Division Basics

North Carolina uses an equitable distribution system to divide property in a divorce. This means that the judge overseeing the divorce will decide how to give each spouse a fair portion of the couple’s marital and divisible property. Equitable distribution is different than the community property method of property division, which applies in different states with different laws.

It is important to note that marital property includes all property that you and your spouse acquired or earned during marriage. Property that each of you already owned before the marriage is called separate property. Divisible property includes any changes in the value of marital property between your separation dates and when the property is distributed, such as bank interest. It also includes anything that you earned during marriage but did not receive until after separation, like a bonus.

Who Keeps the House and Car?

The equitable distribution system takes into account that you may own assets that are difficult to divide – such as a house or a car. To make a fair division of marital property, the judge must decide who will keep those valuable assets. Many different factors may influence the way property is divided, including but not limited to:
• Each spouse’s income, property, and liabilities
• A parent who has child custody needing to occupy or own the marital residence and to use or own its household effects
• Whether property is liquid or non-liquid
• Any claim to or contribution made to the acquisition of marital property by the spouse who doesn’t have title to the property
• Length of the marriage
• Age and health of the spouses
• Any alimony or child support requirements from a prior marriage
• Tax consequences to each spouse

For example, a parent who has sole child custody may need to use the family’s house to house the children, as well as need to maintain residence in the same school district so the children don’t have to change schools. This could be a situation that influences property division.

Also, who has title to the house or who “wants” the house the most may not matter for equitable distribution purposes. It’s more about making a fair division of the marital property based on evaluating the many factors listed in the law.

Can We Decide Property Division Ahead of Time?

With the help of a divorce lawyer near you, you can decide aspects of property division ahead of time. Typically you would do this in a prenuptial agreement, postnuptial agreement, or separation agreement. Prenuptial agreements are signed before marriage, while postnuptial agreements are signed during marriage. Separation agreements are signed either just before or during separation. All of these agreements can include explanations of how the couple agrees to divide marital property should they divorce.

For example, you could expressly state that one spouse keeps the house while the other gets the car. Or you could agree to sell the house and split the proceeds should you divorce. There are many ways to divide property that can be explained in a written agreement. If you are interested in signing such an agreement, contact a family law attorney who can help you prepare it.

How is property divided after a divorce?

When the court grants a divorce, property will be divided equitably (not always equally) between the two spouses. This is decided under the Equitable Distribution Law. During the divorce both spouses have to tell the court about their income and any debts they owe.

What does equitable distribution mean?

Equitable distribution means fairly divided. When marital property is distributed equitably, it is divided between the two spouses as fairly as the court thinks is possible. Although this does not guarantee that the court will decide the property should be divided equally (50-50), this is usually what happens.

What property can be divided in the divorce?

There are two different types of property for the purposes of a divorce. Property that the couple bought during the marriage is called “marital property”. Property that belonged to you before the marriage or was a gift to just you from someone other than your spouse is called “separate property”. Marital property can be divided between the two spouses.

What is marital property?

Marital property includes all property either spouse bought during the marriage. It does not matter whose name is on the title. For example, if a couple bought a home, but only the husband’s name was on the deed, the wife would still be entitled to some of the value of the home if they were to get a divorce.

What is separate property?

Separate property is property that one of the spouses owned before the marriage. For example, a bicycle that the wife had owned since before her marriage would be considered separate property. Any inheritance one spouse gets, even during marriage, is separate property. So are personal gifts (unless they came from the other spouse) and payments for personal injuries.

Can separate property become marital property?

Separate property can become marital property if it is mixed with marital property. For example, if one of the spouses uses money they had before the marriage to buy a house for the couple, that money might become marital property.

What happens if the value of my separate property goes up during my marriage?

If the value of the separate property goes up only by luck (for example, random changes in the market) then the rise in value is still separate property. If the value of the property goes up because your spouse helped to improve the property, then the rise in value may be considered marital property.

Is my pension marital property?

Yes. Pension plans, IRAs, 401ks, and other retirement plans are considered marital property. The portion of these plans that a spouse earned during the marriage will be divided by the court.

How does the court determine what is equitable?
The court should consider these things when deciding how to distribute the marital property:
• The income and property of each spouse at the time of the marriage
• How long the marriage lasted
• The age and health of both spouses
• If there are children, whether or not one spouse the custodial parent needs the home or any other marital property while the children are growing up.
• The loss of inheritance and pension benefits
• The effort of a spouse in the household (for example, a homemaker sacrificing her career for her husband’s sake)

Is the property distribution affected by who is at fault in the divorce?

Usually not. In cases of abuse, the abuse usually must be at the level of a violent felony to affect distribution. Distribution is more likely to be affected if one spouse has refused to help support the family or spent above the family’s means.

Who is responsible for debts?

The court or a divorce agreement can decide who is responsible for any debts. However, if you co-signed with your spouse and your spouse does not make debt payments as they have been ordered, you can still be held responsible by the lender.

What should I do to protect myself from debt that my spouse is responsible for?

You should write to creditors to ask them to close any joint accounts. Otherwise, you will be held responsible for the current debt and any future debt if your spouse continues to use the account.

How does the court decide if the home must be sold?

The court will consider how much the home is worth. It will also look at any mortgages and the other types of housing options.

What are exclusive occupancy rights?

Exclusive occupancy rights give one spouse the right to live in the house. The other spouse must find somewhere else to live. These rights can be given to the parent with custody of the children if the court has delayed the sale of the home. They can also be given for the safety of one of the spouses while the divorce is happening. Courts can give orders of protection, which can make the person the order is taken against to stay away from the home.
Of all the major financial decisions you’ll need to make in a divorce, few will involve larger amounts of money than the decision of what to do with the house. Few will also have a greater impact on the next chapter of your life.
Some couples simply choose to sell, split the proceeds evenly and go their separate ways. Others choose to defer the sale of the home until a later date, especially if kids are involved.

But for many divorcing couples, one spouse is inclined to keep the family home and own it outright on their own. The reason, again, could be that children are living at home and there is the goal of minimizing disruption by letting them reside there. Alternatively, if you don’t have kids, perhaps you love your house so much you don’t want to let it go. Or maybe the choice is being made out of pride and ego. Whatever the reason, it is well within your right to pursue sole ownership (after all, the house is partially yours).

So you’ve decided you want it, but how do you get it?

First, find out the price tag.

In a perfect world, your spouse gives you the green light to pursue purchasing the house from them. But in my experience, a spouse is less likely to agree to a buyout until it’s proven that the other spouse can actually afford it. Otherwise, why would they agree to such an arrangement? You wouldn’t agree to sell your home to a buyer who ultimately couldn’t afford it. The same concept applies here.

Agreeing on a fair value can be a challenge, too. It goes without saying that affordability comes down to the overall purchase “cost.” To figure out what that is, you need to come up with the total amount of equity (aka ownership) the two of you share in the property. In the simplest terms, you take the house’s (agreed-upon) value and subtract what is owed, and that net figure is the amount of equity. Divide that amount in half to come up with each spouse’s share, at least as it pertains to divorce in Utah and other community property states.

Here is an example:

Home value: $1,250,000
Outstanding mortgage balance: $500,000
Outstanding equity line balance: $100,000
Total shared equity = $650,000
Spouse A’s share at 50% = $325,000
Spouse B’s share at 50% = $325,000
Keep in mind other things can impact the actual amount. This example assumes a clean 50/50 equity split. It doesn’t take into consideration who will be responsible for paying off certain debts, who will bear the cost of loan fees or who will be responsible for tax obligations resulting from this title transfer. While some amounts may appear small, they can add up quickly. Whether it’s worth paying your attorneys to fight about it is a different story.
Now you know how much it’s going to cost you (in this case, $325,000) to be able to buy the house outright.
Next, come up with the money.

But how? What is the best decision for you emotionally, in terms of comfort and stability? Do you scrape together $325,000, sell your belongings, cash in investments? Do you borrow money from a bank? Do you ask family members for help? All options are worth considering.

However, one of the most common buyout options is to give your spouse your share in some other marital asset. This can be money in a brokerage or retirement account that would otherwise be yours after the divorce. It could be other tangible assets, such as expensive jewelry, a car or interest in another property, just to name a few. The goal is to put together a package that enables you to complete the purchase and fund the buyout. While you won’t need to borrow money or pay any loan interest going this route, you may end up house rich and cash poor.

Another option: Borrow the money from a bank through a refinance or by adding a home equity line of credit. In the example above, you owe the bank $500,000 and your spouse $325,000. The new loan you could apply for is $825,000, which would cover both expenses. But don’t forget to consider the long-term interest obligations that accompany a 30-year loan of this size. If going this route, be sure to get a pre-approval letter to confirm the option is feasible. Today’s lending environment requires a heightened level of due diligence, and that includes getting pre-approved before proceeding with a formal mortgage application.

A slightly different approach is to take out a home equity line of credit (HELOC) as a second mortgage in addition to your existing first mortgage. Some pros of HELOCs include that they are revolving accounts, similar to credit cards, and the interest-only payment feature keeps your monthly payments down. Cons of HELOCs include higher interest rates than first mortgages, limited interest deductibility and interest rates that are typically variable on a monthly basis (in other words, they can change monthly).

Lastly, family and friends can also be a good fallback plan. If you have family and friends willing and able to help, you’re a lucky camper.

If all else fails, accept reality and move on.

If none of these options works logistically or financially, you may have to accept the reality that you can no longer keep the house. There’s no shame in that. Divorce is a difficult proposition, but don’t make it worse by agreeing to something that will burden you financially and make it more difficult to move on and live a happy life. First, determine what is possible. Then, determine what is prudent. If you’re not sure what you can or cannot do, seek advice from someone who’s qualified. Once the emotional aspect is (hopefully) put to rest, you can look at things clearly from a dollars and “sense” point of view.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
Ascent Law LLC

 

4.9 stars – based on 67 reviews


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Who Claims Child As Dependent On Taxes After Divorce?

Who Claims Child As Dependent On Taxes After Divorce?

Once you are a parent, you never stop being a parent. You stayed up with your kids when they had the flu, helped them study for the ACT, cheered them on at their graduation. You have been there for their highs, lows, and everything in between. You will continue to care, love, and support your children for the rest of your life.
But will there ever be a time they can fly away from the nest?

According to the federal government, the answer is yes! From the time your children were born, you claimed them as dependents on your federal and state taxes, which has saved you money on your taxes over the years. The decision to claim children as dependents rests on a myriad of factors, let’s see how those could affect you this year.

In the Nest – How Long You Can Claim

The federal government allows you to claim dependent children until they are 19. This age limit is extended to 24 if they attend college. If your child is over 24 but not earning much income, they can be claimed as a qualifying relative if they meet the income limits and/or if they are permanently disabled. It is important to know that there is no age limit if your child is permanently disabled.

Other factors that contribute to your ability to claim your children as dependents are:
Amount of time your children live with you

Your child must live with you for at least 6 months before you can claim them as a dependent.
Financial support

If your child makes more than half of their own support during the tax year, they cannot be claimed as a dependent. This support consists of housing, food, education, medical care, insurance, and recreational spending.

Marital Status

If you are not married and the child lived with you and the other parent half of the time, the person with the highest adjusted gross income will often take the deduction. This, however, can be negotiated.

If you pay child support but the child lives with you for less than half of the year, you cannot claim the child as a dependent unless you have a signed Form 8332.

For many families, the longer they are able to claim their children as dependents the better it will be. But the new Tax Cuts and Job Act has changed the way parents claim dependents. Prior to 2018, parents were able to receive a personal exemption that reduced taxable income. For example, in 2017, a married couple filing jointly could take a $4,050 exemption for themselves and each dependent. The new tax law has suspended that exemption benefit from 2018-2025. This means that parents will need to use other tax exemptions to help make up for the loss of the child exemptions.

Claiming A Child As Dependent After Divorce

Divorce is always difficult, but with children, the level of complexity increases, especially around tax time. It’s common for parents to wonder who can claim a child on their taxes after a divorce. In many cases, your divorce judgment will provide guidance, but you’ll also need to follow the Internal Revenue Service’s (IRS) rules to reduce the risk of an audit.

What are the Benefits of Claiming a Child on Your Taxes?

Parents overwhelmingly agree that raising children is expensive, regardless of where you live. To help offset the costs, the tax code offers parents a variety of tax credits that could reduce a parent’s taxable income and result in a sizable refund at the end of the tax year.

Beginning with the 2018 tax year, the Tax Cuts and Jobs Act (TCJA) implemented significant changes to the tax code, including eliminating the personal exemption. To replace the loss of the personal exemption, the tax code nearly doubled the standard deduction. So, claiming a child in 2020 doesn’t have the same impact it would have had in 2012. Parents may qualify for the child tax credit, additional child tax credit, earned income credit, dependent care expenses, or a head of household filing status.

What Are the IRS Rules for Claiming Dependents?

In addition to knowing whether you can make a tax claim for your child, you and your child will need to pass these IRS tests to make sure you qualify as far as the IRS is concerned:

Relationship: The dependent must be your son, daughter or foster child; or a descendant such as a grandchild, brother, sister or step-sibling; or an extended descendant such as a nephew.

Age: The child must have been under 19 years old and younger than you or have been under 24 years old, a full-time student and younger than you in 2018. You can claim a child who was permanently and totally disabled in 2018 regardless of age.

Residency: The child must have lived with you more than 50% of the year.

Support: The child must not have provided more than 50% of their own support over the year.

The Child Tax Credit

The new tax code doubled the Child Tax Credit amount from $1000 to $2000 per child. The tax credit is non-refundable, meaning that it only impacts your overall taxable income. Unlike other deductions, the child tax credit will only reduce your tax liability to $0 and will not, on its own, result in a refund. Some parents will use the entire $2000 benefit by not paying much or anything back to the IRS.

Additional Child Tax Credit

Parents with lower income may only need a portion of the child tax credit to benefit from the tax break. In that case, the parents can also apply for the Additional Child Tax Credit (ACTC). The ACTC is misleading because many parents believe you have to have more than one child to utilize the credit. Instead, the ACTC is available to parents who claim the child tax credit but don’t use the entire $2000 benefit. If qualified, the parents can receive up to $1400 per child as a refund after the initial child tax credit is applied. The credit is only available to parents if the refund equals at least 15% of the parent’s taxable earned income.

Earned Income Credit

The Earned Income Credit (EIC) is available to parents (and non-parents) who work and have earned income under $55,952. The tax credit typically leads to more money in your pocket at the end of the tax year and may also reduce the amount of taxes you owe the IRS. To claim the EIC, you must meet specific income and other requirements. For more information on the EIC, and to determine whether you qualify, visit the IRS website.

Child and Dependent Care Expenses

In some cases, parents may qualify to claim a child’s daycare or other work-related expenses throughout the tax year. Typically, only custodial parents qualify for care expenses credits and must demonstrate that the child lived with the parent for at least six months of the year.

Head of Household

Parents may also qualify to change their filing status to “Head of Household” instead of Single. When you file as Head of Household, your tax rate is usually lower than that of someone filing as Single or Married Filing Separately. You will also receive a higher standard deduction than if you file using another status.

To file as a Head of Household, the IRS requires you to meet all of the following requirements:
• You are unmarried on the last day of the year (December 31)
• You paid more than half of the expenses to keep up your home during the year, and
• A qualifying person (dependent) lived with you for more than half the year.

For the IRS to consider you “unmarried,” you must meet the requirements above and:

Your spouse must not have lived in your home for the last 6 months of the year.

What’s Required to Claim a Child on Your Taxes?

First, your child must qualify as a “dependent” under the IRS rules. You can read more about the qualifications of a dependent in IRS Publication 501. For a more in-depth look into the rules of claiming a child, review IRS Publication 929, Tax Rules for Children and Dependents.

The Child Tax Credit

In addition to being a qualified dependent, the child must meet the following requirements to qualify for the full $2,000 Child Tax Credit:
• The child has to be under age 17 at the end of the year
• You must claim the child as a dependent on your return
• The child can’t have provided over half of their own support for the year, and
• The child must have a Social Security Number.

If the child turns 17 on the last day of the year, that child is ineligible for the full $2,000 Child Tax Credit but would qualify for the new $500 Credit for Other Dependents.

Child and Dependent Care

To qualify for a tax credit towards your child’s care expenses, you must demonstrate the following:
• The child is a qualified person (dependent)
• You meet the IRS’s earned income threshold for the credit
• You incurred the care expenses while you worked or looked for work
• You made care payments to someone who is not your dependent (you can’t pay another child for daycare and request the care credit)
• You must file as single, head of household, qualifying widow, or married filing jointly, and
• You must identify the care provider’s tax identification number on your return.

What Happens in Cases Where Parents Share Joint Custody?

Usually, the custodial parent gets the benefit of the most tax breaks involving the child. If the parents share custody, it’s common for the custody or divorce order to specify which parent can claim the child.
If the noncustodial parent claims the Child Tax Credit, the custodial parent must complete the IRS form, releasing rights to the credit. Without IRS form 8332, the IRS may reject your request to use the tax benefit. If that happens, and the custodial parent claims the child instead, you may need to go back to court to force the filing parent to give your money back. The IRS doesn’t involve itself in domestic fights over child credits, so it will not help you fight for repayment.

In joint custody situations, parents often alternate the tax credits. For example, a custodial parent will claim the child in even tax years, and the noncustodial parent will claim the child in odd tax years. In families with multiple children, parents can also opt to split the tax benefits for the children. For example, if you have two children, each parent can claim one.

If you’re going through a divorce, it’s important to address these tax issues before the judge finalizes your order. You will still need to provide the IRS with the required forms if you’re claiming a child and are not the custodial parent.

Because the child will presumably live with the custodial parent for more than 6 months of the year, the other parent will not qualify for childcare coverage credits or Head of Household filing status. Additionally, the noncustodial parent will not qualify for the Earned Income Credit unless the parent meets the credit’s other IRS requirements.

Tax year 2020 hasn’t brought any major changes to tax law for divorced parents, but things changed significantly with the implementation of the Tax Cuts and Jobs Act in 2018. Some of the most important changes were in regards to how divorced and separated parents can claim dependents.

Changes Enacted in 2018

When filing taxes, a child belongs to the custodial parent — the parent who has custody the greater part of the year. The other parent is called the noncustodial parent.

The custodial parent gets the bulk of the tax breaks, especially if they file as head of household. A divorced or single parent filing as head of household qualifies for a tax rate lower than if you claim a filing status of single or married filing separately. As head of household, you might be able to claim certain credits such as the dependent care and earned income credit.

Claiming Children on Taxes: What Else Is New?

In 2020, the maximum child tax credit is $2,000 per qualifying child younger than 17 years old on Dec. 31. That’s up from $1,000 under prior tax laws. Dependents must have Social Security numbers, which must be listed on the tax returns. The tax credit begins to phase out at $200,000 of modified adjusted gross income for single filers and $400,000 for spouses filing jointly.

The personal exemption deduction for dependents has been suspended for tax years 2018 through 2025. Although the TCJA eliminates dependent deductions, the law makes up for this loss of tax savings by nearly doubling standard deductions. Take a look at the comparison table:

Dependent Deductions Comparison
Filing Status Standard Deduction as of 2020 Previous Standard Deduction for 2017 and Before
Single $12,400 $6,350
Head of Household $18,650 $9,350
Married and Filing Jointly $24,800 $12,700
Married and Filing Separately $12,400 $6,350

In general, tax credits are better than tax deductions. A tax credit is a dollar-for-dollar reduction in taxes, whereas a tax deduction reduces the income subject to taxes. Say, for example, your income is $15,000 and your tax deductions amount to $5,000. The adjusted gross income you’ll pay taxes on is $10,000.

In the case of the child tax credit, you can deduct the $2,000 from a hypothetical $3,500 tax bill and reduce your bill to $1,500. You can get up to $1,400 of the $2,000 tax credit back as a refund if you’re receiving a tax refund.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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Which Spouse Pays Alimony?

Alimony Divorce
Which Spouse Pays Alimony?

Many states define alimony as a court-ordered payment made by one ex-spouse to the other. Courts can also award temporary spousal support while a divorce is pending. Judges award alimony in to try to equalize the financial resources of a divorcing couple. When deciding whether to award alimony, a judge will consider whether one spouse has a demonstrated financial need and if the other spouse has the ability to pay.

Judges usually award alimony in cases where the spouses have unequal earning power and have been married a long time. For example, a judge isn’t likely to award alimony if the couple has been married for only a year. In fact, some state laws allow alimony awards only when the couple has been married for a certain amount of time.
How Does Alimony Work?

Although judges have to follow state law in deciding whether alimony is appropriate, they usually have a lot of discretion in deciding when and how someone has to pay it. An alimony award can be temporary to support a spouse only while the divorce is pending or a permanent award that’s part of a divorce decree.

Alimony payments can be in the form of:
• a lump-sum payment
• a property transfer, or
• periodic (monthly) payments.

In general, lump-sum alimony awards and alimony in the form of a property transfer are non-modifiable, meaning they can’t be changed later and can’t be terminated or undone. Periodic alimony payments may be changed when there’s a significant change in one or both of the spouses’ circumstances. Periodic alimony awards are the most common and require one spouse to pay a certain amount to the other (the “supported” or “dependent” spouse) each month. A periodic or monthly alimony award will end on a date set by the judge, or when one of the following events occurs:
• the supported spouse remarries
• the supported spouse moves in with another person\
• either spouse dies, or
• a significant event (like a paying spouse’s retirement or a supported spouse’s new high-paying job) happens and a judge determines that alimony is no longer necessary.

As with most issues in your divorce, you and your spouse can negotiate and reach an agreement about the amount of alimony and length of time it’ll be paid.

Negotiating Alimony and Other Terms of Your Divorce

If you and your spouse don’t agree on alimony payments or other terms of your divorce (such as property division and child custody), it doesn’t mean you’ll have to battle it out in court. Divorce mediation—negotiation led by a neutral third party outside of court—is an excellent alternative for many. You might even be able to mediate your divorce online.

If you can’t agree, you’ll need to file a formal motion (request) asking a court to decide alimony. The court will schedule a hearing where both sides will be able to present their positions regarding alimony. After considering the arguments and evidence presented at the hearing, the judge will issue an order. One of the downsides of asking the court to decide is that if you’re represented by an attorney, the expense of going through a hearing can be significant. Even if you’re not represented by an attorney, you will have to spend a lot of time gathering evidence (such as financial documents) and preparing for the hearing.

How Courts Decide Alimony

Every state has its own guidelines on what judges should consider when deciding whether to award alimony. Most states require judges to evaluate:
• how property is being divided in the divorce
• the standard of living during the marriage
• the supported spouse’s ability to maintain a similar lifestyle without support
• each spouse’s income, assets, and debts
• the length of the marriage
• each spouse’s age and health
• contributions that either spouse made to the other’s training, education, or career advancement, and
• any other factors the judge thinks are relevant.

If you’re the spouse asking for support, the court will look closely at your current income or ability to earn if you aren’t currently working. When the supported spouse has been out of the workforce or has been underemployed (has an opportunity to work full- or part-time but chooses not to) for a long time, the judge is more likely to award support for at least as long as it will take the supported spouse to become independent. For example, if one spouse is trained as a doctor but took several years off to care for children and support the other spouse’s career, a judge will examine the medically trained spouse’s future earning potential. Maybe that spouse needs initial support to reenter the workforce but not a long-term alimony award.

Both spouses might have to make some life and work changes after divorce. For example, a judge might require a spouse who has a part-time job that doesn’t pay well to try to find full-time employment in a higher-paying field. Sometimes, a judge will order (or the paying spouse might request) that an expert called a “vocational evaluator” make a report to the judge on the job prospects for a spouse who hasn’t been fully employed for a while. The evaluator will administer vocational tests and then compare the spouse’s qualifications with potential employers or open job positions in the area to estimate how much income the spouse could earn.

Tax Impacts of Alimony

In Utah, alimony payments aren’t tax-deductible for the paying spouse, and alimony payments received aren’t taxable income for the supported spouse. That’s a change from how alimony was treated for decades.

Enforcing an Alimony Award

The duty to pay alimony begins as soon as an order requiring it is signed by a judge. An alimony order is enforceable by the supported spouse: If the paying spouse isn’t actually paying, the supported spouse can file a “show cause” action (motion), and the court will set a hearing to determine why the paying spouse isn’t following the order and what the court should do to enforce it.

Family law courts have various tools at their disposal to enforce alimony payments, and a deadbeat spouse could face fines and penalties for failing to follow an alimony order. A court can also order a spouse to pay alimony retroactively to make up for any missed payments.

How the Amount of Alimony is Determined

Unlike child support, which in most states is mandated according to very specific monetary guidelines, courts have broad discretion in determining whether to award spousal support and, if so, how much and for how long. The Uniform Marriage and Divorce Act, on which many states’ spousal support statutes are based, recommends that courts consider the following factors in making decisions about alimony awards:
• The age, physical condition, emotional state, and financial condition of the former spouses;
• The length of time the recipient would need for education or training to become self-sufficient;
• The couple’s standard of living during the marriage;
• The length of the marriage; and
• The ability of the payer spouse to support the recipient and still support himself or herself.

Alimony and Support Orders

Although awards may be hard to estimate, whether the payer spouse will comply with a support order is even harder to gauge. Alimony enforcement is not like child support enforcement, which has the “teeth” of wage garnishment, liens, and other enforcement mechanisms. The recipient could, however, return to court in a contempt proceeding to force payment. Because alimony can be awarded with a court order, the mechanisms available for enforcing any court order are available to a former spouse who’s owed alimony.

How Long Alimony Must Be Paid?

Alimony is often deemed rehabilitative, that is, it’s ordered for only so long as is necessary for the recipient spouse to receive training and become self-supporting. If the divorce decree doesn’t specify a spousal support termination date, the payments must continue until the court orders otherwise. Most awards end if the recipient remarries. Termination upon the payer’s death isn’t necessarily automatic; in cases where the recipient spouse is unlikely to obtain gainful employment, due perhaps to age or health considerations, the court may order that further support be provided from the payer’s estate or life insurance proceeds.

Alimony Trends

In the past, most alimony awards provided for payments to former wives by breadwinning former husbands. As the culture has changed, so that now most marriages include two wage earners, women are viewed as less dependent, and men are more apt to be primary parents, the courts and spousal support awards have kept pace. More and more, the tradition of men paying and women receiving spousal support is being eroded, and orders of alimony payments from ex-wife to ex-husband are on the rise.

Who Qualifies for Spousal Support?

The majority of the states define spousal support as payments made by one spouse to the other. It is also known as “alimony” or “spousal maintenance.” A spousal support award can be temporary while a divorce is pending, or it can become a permanent award and be included in the divorce decree. Alimony payments are meant to equally divide the financial resources of a divorcing couple. A judge will essentially assess if one spouse has a demonstrated financial need and if the other spouse has the ability to pay the payments. Alimony is usually granted in cases where the spouses have unequal earning power and have been married a long time. For instance, a judge is not likely to award alimony if the couple has only been married for a year. Some state laws prohibit spousal support awards unless the couple has been married for a certain amount of time. Therefore, the duration of the marriage is crucial in some cases.

How Is the Amount of Alimony Determined?

Unlike child support, which in most states is required according to very specific monetary guidelines, courts have a broader discretion in determining whether to grant spousal support. The Uniform Marriage and Divorce Act, on which many states’ spousal support statutes are based, suggests that courts consider the following factors in making decisions about spousal support awards:
• The age, physical condition, emotional state, and financial condition of the former spouses;
• The length of time the recipient may need for education or training to become self-sufficient;
• The couple’s standard of living during the marriage;
• The length of the marriage; and
• The ability of the payer spouse to support the recipient and still support himself or herself.

How Does Alimony Operate?

There are different types of alimony payments that can be ordered by the court. For instance, if an alimony is ordered by the court, it can be in the form of a lump-sum payment, a property transfer, or periodic monthly payments. Periodic alimony awards are the most common and require one spouse to pay a certain amount to the other each month. The other spouse is usually the one that does not earn or is the spouse that needs to be financially supported.

Next, the lump-sum alimony awards and alimony in the form of a property transfer are generally non-modifiable, meaning they cannot be changed later and cannot be terminated or undone. For a periodic or monthly alimony award there will be an end date set by the judge, or it may terminate when one of the following events occurs:
• The supported spouse remarries;
• The supported spouse cohabitates;
• Either spouse dies or;
• A significant event occurs (paying spouse’s retirement) such that a judge determines that alimony is no longer necessary.

What Are the Divorce Alimony Rules?

If you are the spouse requesting the support, the question of whether you qualify for alimony is usually determined by taking into account your own income or ability to earn if you are not currently employed. However, this is not necessarily what you are earning at the time you go to court, but it represents your earning potential. For instance, if one spouse is trained as a medical doctor but took several years off to care for children and support the other spouse’s career, a judge will examine that spouse’s future earning potential. The spouse may need initial support to reenter the workforce, but not a long-term alimony award.

Following a divorce, you may also be required to make some changes in your life and work. For instance, if you have a part-time job that does not pay well, you may be required to attempt to find full-time employment in a higher-paying field. Courts can hire reporters to ensure that there is a good faith employment search and what the earning capacity of that spouse would be in the workforce.

How Do I Enforce an Alimony Award?

A spouse who is ordered to pay alimony in a divorce will need to make the payments when they are due. Alimony starts as soon as a divorce order requiring it is signed by the judge. A spouse who fails to make the required alimony payments can be held in contempt of court. This means the supported spouse can file a show cause action with the court against the spouse refusing to make alimony payments. The court will set a hearing to determine the reason for payment delinquencies. Family law courts have various tools from their resources to enforce alimony payments. Therefore, the spouse not making the payments in accordance with the divorce decree could face fines and penalties.

How Do I Terminate an Alimony Award?

Death of either ex-spouse or remarriage of an ex-spouse are the most common reasons for terminating spousal support. Some states permit for the reduction, suspension, or termination of alimony if the recipient starts living with another person in a romantic relationship. The payor must provide the court with adequate evidence that the payee resides with another party and both are generally recognized as a couple. Many states now recognize same-sex as well as heterosexual cohabitation. Other reasons for termination include the recipient becoming self-supporting through employment or receipt of other financial support. Moreover, the payor may request the court to terminate alimony by providing evidence a condition exists that would terminate support payments automatically. Another option is that the payor could prove that the continuation of alimony would be a financial hardship or unfair treatment. However, keep in mind that it is challenging to prove hardship or unfairness.

When Should I Contact a Lawyer?

If you are receiving spousal support or think that you may qualify, it may be useful to reach out to a local family attorney to consider what your options are for proceeding forward. Your attorney can provide you with advice, support, and representation for your claim.

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It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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When Is Divorce A Good Idea?

When Is Divorce A Good Idea?

Deciding whether you’re in a failing marriage that’s beyond repair is obviously not a choice that comes easily—especially when you’ve put in the work to try and salvage what feels like a loveless partnership. You might’ve chosen to overlook those first signs that divorce is the best move for one (or both) of you, and you’ve been coping with an unhappy relationship for some time. Or, perhaps you hope that the union’s still got some fight left and you’re not ready to leave. It’s not a decision to take lightly. But now, whether it’s a matter of one too many arguments, trust-sapping infidelity, or something else entirely, you’re clearly contemplating a permanent split.
Many relationships can be revived, but if there’s been too much neglect, damage, or depletion of all the ‘nutrients’ necessary to cultivate a healthy relationship, it may have reached its final expiration date.”

Here are the most common signs that you should consider divorce, and that you may be ready to move on to the next chapter of your life.

You never argue.

Believe it or not, you’re supposed to argue. Silence and avoidance can be detrimental to a relationship. When you just can’t be bothered anymore, it means something is missing. While not all fights are productive, it’s healthy to be able to resolve arguments in a way that benefits the marriage, you fight for each other. You fight for the relationship. The biggest problem is when there’s no fight left.

Winning is everything.

While never fighting (i.e. complete detachment) may be one sign of impending divorce, the way you argue when you do have a disagreement is another indication. “Ideally, you want a conflict to be resolved in a way that preserves the relationship, if fighting is more about pointing fingers, placing blame and the need to ‘win,’ the focus becomes power and not connection, and that is a red flag.

You want to provoke your spouse.

When you find that you’re constantly testing how far you can push your marriage before it completely shatters, you’re playing divorce roulette. Once you start trying to push your spouse’s threshold, it’s possible that you subconsciously want to end things but are afraid to make the move. For example, if you leave your computer open to an inappropriate (read: flirtatious) email exchange, you may secretly be hoping your spouse finds it so they’ll initiate a conversation about why you’ve been unhappy.

They send your heart racing.

We’re not talking the pitter patter of love. We’re referring to full on, heart rate rising stress. If you have a negative physical reaction when your spouse walks into the room, it’s important to pay attention to what your body is telling you.

Along those same lines, if your heart grows heavy and your stomach balls up into a knot every time you think about staying in your marriage, your body is letting you know it might be time to go. Our brains can lie to us, our body on the other hand, is the incorruptible truth-teller.

You hide your real self.

If you feel like you’ll be rejected if your spouse sees “all” of who you are, it’s impossible to be in a fulfilling relationship, a relationship expert and paternity court judge. When you constantly have to filter yourself, or keep your beliefs away from your spouse, it shows a lack of respect in your opinion. And that’s tough to fix.”

You’re overcompensating on Facebook.

Social media usually manufactures an extremely edited version of our lives. It’s also a space in which it’s easy to craft an illusion, hiding the reality of an unhappy marriage. According to Morris, when you or your partner suddenly start to overshare on social media, it’s usually an attempt to cover up the truth. Constantly feeling the need to show the world how great your relationship is—when, in reality, you know it’s not—may be a sign that things are falling apart.

When the thought of leaving scares the hell out of you, and yet…

It can be exciting to think about the life you could be living if you weren’t with this person any longer—the freedom, the adventures, the passion. But those fantasies are centered on what happens when you’ve already left the marriage. Take notice of what it feels like to imagine actually leaving, not just living this new life of yours sans partner. If the thought of leaving scares you, yet you’d still rather leave than stay, it’s a pretty strong indicator that it’s time to go.

Kids (or work, or friends) come first.

All of these outside influences can positively impact a marriage. And, of course there will become times when other factors (an ailing mom, having to focus on your child) will require your full attention. But, when any one thing takes over, leaving little room for a partner to dedicate time and attention to the relationship, it can take its toll. When those influences are all they talk about and all they think about, it can drive a wedge between spouses. The chasm can become so wide that the prospect of divorce begins to stare them right in the face.

It’s “I” and “me” and never “we.”

Marriage takes teamwork, and that means coming together for a common goal. When the team mentality stops, it may be a sign your marriage is over, couples are encouraged to think of their relationship in terms of “we” instead of “I.” The language we use when talking about our relationships can predict a break up. The pronouns you choose (I, me, mine, our, us, we) are a sign of how close you feel to your partner. So, look out for what expressions you find yourself (or your spouse) using.

You push back when others say, “stay.”

We rarely broadcast our relationship struggles to those around us, so it’s to be expected to get pushback from others who can’t seem to understand why you’d want to make this choice. A friend or family member’s objections may just be the gut-check you need. Leaving a marriage of any length will eventually provide the opportunity to examine your decisions, and your heart, , and you can only truly do this if you know you’ve made the decision that makes the most sense for you, not anyone else.

They stop being your go-to person.

Who do you call when you’re having a bad day? Who’s the first person you text when you hear good news? There’s an amazing rainbow outside your window…who—besides Instagram—do want to send the photo to? Your partner should be the first person you go to, in crisis or in celebration. When either one of you no longer wants to share important moments, you stop feeling connected. That disconnect can cause major loneliness in a relationship, which can often lead to divorce.

Forgiveness doesn’t seem like an option.

Infidelity in a marriage is definitely a road block, but not always a deal breaker. It’s possible to move on and have a healthy relationship. However, if both spouses choose to stay married, it’s imperative to fully forgive and make peace with your partner. If you’re dredging up past issues every time there’s an argument, or are holding onto resentment, then it’s most likely the marriage won’t survive.

You already have an exit strategy.

Are you moving money into different accounts? Looking for a new job so you have even more financial independence? Once you start planning like that, it’s a sign that you believe your marriage isn’t working, While she acknowledges that taking steps to ensure you’re not reliant on anyone and that you have your own savings can certainly be a good thing, it also means that you may have one foot out the door without realizing it. And when you’re not willing to be “all in,” your marriage could be on the outs.

It’s hard. All the time.

While every relationship has its rocky periods once in a while, conflict and feelings of disconnection shouldn’t be chronic. If it’s hard far more often than it is inspiring or pleasurable, it may be time to move on.”
You’re constantly wondering if you should leave.

There’s one thing about confusion, It is usually a lie. We block our own answers when we tell ourselves we don’t know. You are not confused about what to do, but you are afraid of the action you know you should probably take. In other words, if you are constantly wondering, then you likely already know your answer. When you’re considering divorce ― or reeling from your ex’s decision to end the marriage ― it’s easy to focus on the negatives: How will I possibly get by living on my own again? How will the kids be impacted by this? Am I doomed to be alone for the rest of my life?

Your Spouse Is A Serial Cheater.

It possible that your spouse just isn’t cut out for marriage or monogamy, even if they seemed to have wanted to get married. They also may put the blame for their philandering and untrustworthiness on you and may accuse you of being too jealous or controlling. When trust is broken in such a painful way, it is difficult to recover, and it if your partner has had multiple affairs, it is highly improbable that there will be enough good will for your marriage to be viable. Even if you decide to stay in the marriage, but it is doubtful that you will ever be able to fully trust your partner if they have cheated multiple times.

When you can’t get past a major breach of trust in the marriage despite many efforts and discussions, that’s a telltale sign your marriage may be beyond repair.

There’s Been An Instance Of Domestic Violence.

The reality is that, more likely than not, if there has been one incident of domestic violence, that there will be more. If you are in doubt about this, ask yourself the following question: If you had a daughter who was the victim of domestic violence, would you encourage her to stay married? Hopefully, your response would be a resounding, ‘No” When your health and safety are compromised by staying in the marriage, there should be no question about whether you should leave.

Reasons Divorce Is Preferable To Staying In An Unhappy, Unhealthy Marriage.

Marriage may give you a sense of security but divorce gives you a new lease on life.
Staying in a bad marriage can provide security because at least you know how your life will go. But getting a divorce gives you hope ― the hope to be who you want to be, the hope to be happy and the hope to find someone else to love.

Being a single parent is better than modeling an unhealthy relationship.

If you’re a parent with young kids, getting a divorce is better than staying in a bad marriage because these are formative years for them. They will likely seek out and emulate the types of relationships they see modeled. I want my relationships to be happy, healthy and mutually respectful, so that my children never settle for anything else in their own lives.

Divorce clears the way for you to meet the right partner.

Divorce is painful but it’s kind of like pulling off a Band-Aid: The anticipation is horrible but once it’s over, it’s pure relief. Bonus: It allows you the freedom to meet the person you were meant to be with!
You get to focus on you for once.

After divorce, you find yourself again and fall in love with the wonderful attributes that makes you you. As a mother especially, you can parent with just your own mama instincts and all your love and energy can flow into your little one(s). You find genuine peace and happiness and an appreciation for life that may have been sucked out of you during your bad marriage.

Divorce isn’t the worst thing that can happen to your kids. Enduring a hostile home life is.

After my first wife and mother of my five children left us permanently, I felt like going through divorce was the worst thing that could happen to a family. So when my second marriage was falling apart, as my kid’s sole and single parent, I was desperate to protect them from the trauma of another divorce. As a result, I kept the family in a situation that wasn’t good for any of us. The reality is, the worst thing for your children is for them to live in a hostile home and have them see you unhappy. My life and my children’s’ lives have gotten better and happier with each passing day after the divorce.

There’s a big difference between loneliness and solitude.

My divorce helped me discover the gift of solitude when I once experienced the pain of loneliness. Now that I’ve learned to enjoy being alone, I’m free from that awful feeling of separation that comes from being with the wrong person.

You and your partner may be stifling each other’s growth.

I feel that divorce should rarely be the first choice because generally the only thing keeping a ‘bad’ marriage from being a ‘good’ marriage is sustained mutual effort. That being said, there are times that divorce is the best choice in order to allow both partners to grow and achieve the life they desire, and in some scenarios, the life they deserve.

A happier parent is a better parent.

Learning to let go and step into the unknown may be the single most important thing you can do for your own sanity and the sanity of those around you. Divorce proves that you have the courage to live a life of happiness. And if you’re happier, you’ll be a far more effective parent.

You can devote your energy to other important areas of your life.

If you have done all the work of trying to make the marriage better and nothing is changing, finding the courage to leave and move forward pays off in the long run. The pay off? You stop putting all your energy into a relationship that no longer works and put more energy into yourself and your kids.

You deserve a partner who’s just as invested in the relationship as you are.

Divorce is preferable to a marriage without love. We all deserve to be loved. I never want to be in a marriage where that partnership isn’t sacred and a priority.

Relationships are complicated, to say the very least, and even the most stable of marriages will go through intense highs and extreme lows. So if you’re asking yourself, Should I get a divorce?” know that you’re not alone — a 2015 poll found that half of all married couples have contemplated divorce. But determining whether or not your marriage should end is an entirely personal decision, and there are a number of factors that will play into you eventually choosing to either work through your relationship issues, or call it quits.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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When Do Alimony Payments Stop?

When Do Alimony Payments Stop?

Spousal support, also commonly known as alimony, refers to recurring monthly payments made by one spouse to the other spouse when a couple is divorced or legally separated. Although the laws and requirements for spousal support will vary by state, it is usually intended to assist the recipient spouse in gaining financial independence.

Spousal support payments also help to ensure that the receiving spouse can retain the lifestyle they have become accustomed to during their marriage or at any point before they were legally separated or divorced from the supporting spouse. In most cases, the spouse who has the higher salary will typically be ordered to pay spousal support to the other spouse. In other words, whichever of the two spouses is in worse financial condition will normally be the spouse who is allowed to collect alimony.

Generally speaking, a court may order spousal support payments in any of the following situations:
• If one of the spouses has a disability or other medical condition that prevents them from being able to support themselves or get a job;
• If there is a significant imbalance between the two spouses regarding their earning potential and salary;
• If one of the spouses was forced to quit their job to stay home and take care of the couple’s child or children, while the other spouse was permitted to work and earn a living; or
• If one spouse helped to support the other spouse while they pursued an activity that would lead to potentially receiving a higher income (e.g., if one spouse worked and the other attended a graduate program).

It is important to note, however, that spousal support payments will not necessarily last for the rest of the recipient spouse’s lifetime. For instance, certain conditions or circumstances may affect the amount they receive. It can even terminate spousal support permanently if such payments are no longer needed. Lastly, if you need assistance with either terminating or receiving spousal support, you should contact a local family lawyer or divorce attorney immediately for further legal advice on the matter.

Can Spousal Support Be Terminated Early?

There are some circumstances in which a spouse may be able to end alimony payments early. Again, these conditions and requirements will depend on the laws of the state in which a petition to terminate spousal support is filed. This may include the following:
• If the recipient spouse has died;
• If the income of the recipient spouse has substantially increased to the point they have either become self-sufficient or make more than the spouse paying alimony;
• If the paying spouse would experience economic hardship due to continuing having to make payments at such an amount; If the recipient spouse remarries or moves-in with another person (note that this is subject to exceptions based on the laws of individual states);
• If the recipient spouse has intentionally avoided getting a job or becoming self-sufficient;
• If the recipient spouse hid assets, property, or other income to ensure they would receive spousal support payments from the other spouse; and/or

• If the spouse making alimony payments has retired due to one of the following reasons:
I. They are well beyond the age of retirement;
II. Their employer forced them to retire (e.g., involuntary retirement);
III. The length and amount they have paid to the recipient spouse before they retired;
IV. Their overall health status; and
V. Whether they intentionally retired to terminate alimony payments earlier than anticipated.

What Can a Spouse Do to Terminate Payments Early?

As previously mentioned, the steps and overall process to stop alimony payments early will depend on the circumstances surrounding a specific case and on the laws of a particular state. Generally speaking, however, the paying spouse will need to obtain approval from a court before they will be permitted to stop paying alimony. They can begin this process by filing a court form known as a “petition for termination of spousal support” with their local family law court.

The paying spouse will also need to provide supporting documentation along with their petition, including the following information:
• The reasons as to why they are filing a request to terminate alimony payments earlier than what was initially decided;
• A recent income statement that discloses how much they earn in a given period, the number of income sources they have, how much income they earn per each source, and where their main source of income comes from;
• A list that contains recurring expenses, reveals what those expenses are, and how much the expenses cost over a certain time frame; and
• Various other documents that indicate a change in circumstances that would warrant the court approving their petition.

Once the appropriate paperwork is filed and the court filing fees are paid, the interested parties must be served a copy of the documents that were filed. After the necessary legal procedures are complete, the court clerk will schedule a date for a court hearing regarding the petition.

At this hearing, the court will listen to arguments from both parties and examine any evidence that will help the judge to make a clear decision on whether or not alimony should be terminated earlier than expected. The judge will then issue a decision based on the parties’ arguments and supporting evidence. If the judge decides to approve the petition, the paying spouse will no longer be legally obligated to make spousal support payments to the receiving spouse.

On the other hand, if the court denies the petition, then the paying spouse must continue to pay alimony to the receiving spouse as if nothing has changed. The court may also decide to reduce, as opposed to completely deny, the amount of alimony that the paying spouse must send to the receiving spouse each month.

There are also some ways to avoid paying alimony altogether, such as if:
• The couple had a prenuptial or postnuptial agreement that precludes the other spouse from receiving alimony, or at the very least, reduces the amount they can receive each month;
• A spouse can prove they make less money than the other spouse or are in a worse financial situation that is beyond their control (e.g., terminal illness);
• The paying spouse can prove that the receiving spouse has gotten remarried (subject to exceptions); and/or
• In some states, the duration of the marriage may affect alimony payments. Thus, if the duration of the marriage was extremely short, then a spouse may be able to avoid having to pay any alimony to the other spouse.
Issues or disputes involving termination of alimony payments can become very complicated; especially, if the two spouses are unwilling to cooperate with one another. Thus, you may want to consider hiring a local family lawyer if you need assistance with terminating or preventing the termination of alimony payments.

An experienced family lawyer will be able to help you modify and prepare the necessary legal documents that are required to petition the court for a termination of alimony payments. Your lawyer can also advise you on the best course of action based on your personal circumstances and can explain what rights you have under the law.
In addition, your lawyer can offer guidance on the likelihood of succeeding on a petition to terminate alimony payments and can devise a new plan in advance should the court deny your petition. Alternatively, if you are the recipient spouse, your lawyer can assist you in building a convincing case not to terminate spousal support payments as well as can represent you on the matter in court.

There are several types of alimony, but each state’s alimony awards vary. Typically, needy spouses can request any of the following types of support:
• temporary support while the divorce is pending
• rehabilitative support to cover expenses until the recipient becomes self-supporting
• reimbursement support requires the paying spouse to pay back any money the recipient paid for that spouse’s education or work advancements, and
• permanent support, which the court reserves for cases where the recipient is unlikely to become financially independent.

Depending on your case’s circumstances, the judge may award periodic (monthly) payments, lump-sum payments, or payments through property exchange. The judge will explain the terms of alimony in your final divorce decree, including the end date. If your circumstances change before the ordered end date in your court order, you can request a formal review by the court. The legal requirements to modify alimony will depend on your state and your specific divorce decree. For example, if you agreed that your alimony award was non-modifiable, even a significant income change won’t be enough to allow the judge to change the order.

Remarriage and Alimony

Alimony usually ends if the receiving spouse remarries, unless there’s a written agreement or court order to the contrary. However, judges in some states have the discretion to continue alimony even after the spouse receiving it remarries unless your written settlement agreement specifies that payment will stop if one of you remarries.
Typically, the paying spouse’s marital status doesn’t affect alimony, even if it involves supporting additional children. In most cases, it makes sense for support to end if the supported spouse remarries and no longer needs financial assistance. But it’s not always that easy. If your final divorce order is silent on what should happen if the supported spouse remarries, state law will control. Each state has requirements for terminating or modifying alimony, so it’s important to check your alimony agreement and final court order and your state-specific laws before rushing to court after discovering that your spouse remarried.

Cohabitation

Every state’s legal definition of cohabitation varies. States that are silent on a definition agree that cohabitation exists when two people live in the same home in a marriage-like relationship, sharing expenses, without being legally married.

What Happens When a Supported Spouse Cohabitates with Someone New?

Although most states have clear rules terminating alimony when the supported spouse remarries, what happens if your ex-spouse is in a relationship but not married? The court may still terminate alimony, but it depends on where you live and your case’s specific circumstances.

Most states will reduce or terminate alimony if cohabitation significantly decreases the recipient’s need for support. For example, suppose you pay monthly alimony to your ex-husband, and he’s living with a new partner who is unemployed and broke. In that case, the court may not terminate your obligation to continue supporting your ex-spouse.

Other states will terminate alimony, regardless of whether the cohabitation impacts the recipient’s economic status. For example, in one Utah case, a husband asked the court to end support payments after discovering that his ex-wife was cohabitating with a new partner. The court evaluated several factors when determining whether the cohabitation resulted in a marriage-like relationship, including:
• the length of the relationship
• the amount of time the cohabitants spend together
• the nature of the activities the pair engaged in
• the interrelation of their personal affairs
• shared vacations, and
• their spending holidays together.

What Factors Do Courts Consider When Determining Permanent Alimony?

If you and your spouse can’t agree on permanent alimony as part of your divorce negotiations, you’ll probably end up in court, where a judge will decide both the amount and duration of long-term support. When looking at who should pay alimony, and in what amount, courts consider the extent to which each spouse’s earning capacity (potential to earn income) is sufficient to maintain the marital standard of living, taking into account a long list of factors including:
• the marketable skills of the supported spouse; the job market for those skills; the time and expense required for the supported spouse to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire more marketable skills or employment
• the extent to which the supported spouse’s earning capacity is impaired by periods of unemployment incurred during the marriage to permit the supported spouse to devote time to domestic duties
• the extent to which the supported spouse contributed to the paying spouse’s attainment of an education, training, career, or license
• the paying spouse’s ability to pay alimony (taking into account the paying spouse’s earning capacity, earned and unearned income, assets, and standard of living)
• both spouses’ financial needs based on the marital standard of living
• both spouses’ obligations (debts) and assets, including separate property
• the length of the marriage
• the supported spouse’s ability to work outside the home without excessively interfering with the interests of any dependent children in his or her custody, and
• the age and health of the spouses.

How Long Does Permanent Alimony Last?

The term “permanent” alimony is somewhat of a misnomer. Very few, if any, support awards will continue permanently. Generally, for short-term marriages (under ten years), permanent alimony lasts no longer than half the length of the marriage, with “marriage” defined as the time between the date of marriage and the date of separation. So, if your marriage lasted eight years, you may expect to pay or receive alimony for four years.

If your marriage was very short, permanent support may never become necessary. For example, if your marriage lasted only one year, you can expect to pay or receive alimony for six months; but this obligation may be met through temporary support payments. For marriages over ten years, there’s no hard-and-fast rule for figuring out how long alimony should last. Judges will consider various factors in order to place the supported spouse in a position as close as possible to the marital standard of living, until that spouse can reasonably become self-supporting.
After the divorce is final, alimony will continue as stated in your “marital settlement agreement” (a written agreement between spouses that resolves divorce issues) and/or court order awarding alimony, unless one spouse requests a modification or termination of support.

Can I Modify or Terminate Alimony?

Yes. Either spouse may request that the duration and/or amount of alimony be modified (changed), as long as the original order (or marital settlement agreement) awarding alimony doesn’t contain any language that makes alimony “non-modifiable.”

There are two ways to modify alimony. First, you and your spouse can agree to change the amount and/or duration of alimony. If this happens, you should enter into a written contract that spells out the new agreement, and ask the judge to turn the agreement into an official court order.

If you can’t agree, you’ll have to head to court. The person who wants to modify alimony must file a motion with the court and show a “material change of circumstances” from the time the original support order was made. The involuntary loss of a job, for example, may constitute a material change of circumstances. If the payor spouse’s income has decreased through no fault of his or her own, a judge may find that it’s appropriate to reduce support.
Similarly, you may be able to completely terminate your obligation to make alimony payments, as long as you can show a change of circumstances that warrants termination. However, if your order whether imposed by the court or arrived at by agreement between you and your spouse – was made “non-terminable,” then you won’t be able to terminate it prior to the date it’s set to end.

Finally, a support obligation will automatically terminate upon the death of the supported spouse. If the supported spouse dies before the alimony obligation ends, the payor spouse no longer has to pay, and the supported spouse’s estate can’t enforce the alimony order to its own benefit.

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It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
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What Types Of Spousal Support Am I Eligible For?

What Types Of Spousal Support Am I Eligible For?

Spousal support (also called alimony) falls into two broad categories: short-term support and long-term or permanent support. “Reimbursement” support is a kind of long-term support. A spouse may also get temporary support before the divorce is final.

How long one ex-spouse must help support the other is as much in the judge’s discretion as is the amount of support. Some judges start with the assumption that support should last half as long as the marriage did, and then work up or down from there by looking at certain factors. Most states don’t have guidelines for the duration of support, but some do—for example, in Utah, payments are limited to three years except in special circumstances. In Utah, support can’t last any longer than the marriage did. And in some states the marriage must have lasted at least ten years for a court to order support at all. How long support lasts depends on the nature of the support.

It’s possible that a former spouse might receive more than one kind of support at the same time. If a spouse is getting more than one kind of support, say rehabilitative and short-term, then when the spouse is employed again, the rehabilitative support would end. The short-term support would continue until its termination date.

Temporary Support While the Divorce Is Pending

You and your spouse don’t need to wait until everything in your divorce is settled to work out spousal support arrangements. In fact, the support issue may be most important immediately after you separate, to support the lower-earning spouse while your divorce is in process.

It’s always a good idea to make a written agreement about temporary support. (For one thing, payments are tax deductible only if there’s a signed agreement.) If you can’t agree on a temporary support amount, then you’ll probably spend some time in court arguing over it. If you have a right to support, it starts as soon as you separate, so get yourself to court right away.

Short-Term and Rehabilitative Support

Judges order short-term support when the marriage itself was quite short. Short-term support lasts only a few years, and its precise ending date is set in the court order. Rehabilitative support, sometimes also called “bridge the gap” support, is a specific kind of short-term support, designed to help a dependent spouse get retrained and back into the workforce. It lasts until the recipient is back to work. Generally, that date isn’t set in advance—the agreement is that the support payments will stop when the recipient completes a retraining program and becomes employed in the industry. The recipient is responsible for diligently pursuing the training or course of study and then searching for work. The other spouse is responsible for paying the support until that point and a payer who suspects the recipient isn’t really trying to complete an education or get work can ask the court to reduce the support amount or set a termination date. The person asking for the modification would have to prove that the other ex-spouse was not working hard enough.

Long-Term or Permanent Support

Permanent support may be granted after long marriages (generally, more than ten years), if the judge concludes that the dependent spouse most likely won’t go back into the workforce and will need support indefinitely. Some states don’t allow permanent support. It’s odd, but in fact even so-called permanent support does eventually end. Of course, it ends when either the recipient or the payor dies. It also may end when the recipient remarries. And in about half the states, it ends if the recipient begins living with another person in a marriage-like relationship where the couple provides mutual support and shares financial responsibilities.

Reimbursement Support

Reimbursement support is the only type of spousal support that’s not completely based on financial need. Instead, it’s a way to compensate a spouse who sacrificed education, training, or career advancement during the marriage by taking any old job that would support the family while the other spouse trained for a lucrative professional career. Generally both spouses expected that once the professional spouse was established and earning the anticipated higher salary, the sacrificing spouse would benefit from the higher standard of living and be free to pursue a desirable career. If the marriage ends before that spouse gets any of the expected benefits, reimbursement support rebalances the scales by making the professional spouse return some of what was given during the marriage. Because it’s not tied to need, reimbursement support ends whenever the agreement or court order says it does. Its termination generally isn’t tied to an event like the supported spouse getting work or remarrying.

Financially Disadvantaged Spousal Support

The bottom line is that there needs to have been one partner or spouse who was financially disadvantaged as a result of the marriage, and the other partner or spouse benefitted off of the other’s disadvantage. The simplest way to break this down is to look at what I am going to refer to as a “traditional” marriage where the husband works and the wife does the work at home to keep the house and family going. In this situation the wife is not making an income and is therefore disadvantaged, whereas the husband is able to take advantage of the wife’s childcare so that he is able to work himself. So essentially here the wife did not have the opportunity to work outside of the house because of the role she played in the marriage. On the other side of the spectrum is a couple who both worked and had similar incomes and neither lost a work opportunity. In that case it is very unlikely that spousal support will be paid.

Obviously every marriage and roles within that relationship is different but it is the give and take that we look at where one partner or spouse’s giving leaves them in a financially disadvantaged circumstance and the other benefits from the give, there may be a claim for spousal support to compensate for that disadvantage.

Needs Based Spousal Support

There is another type of spousal support that is based out of need, rather than compensation. The basic idea is that where one party is unable to meet their needs after a separation, it should be the former spouse that financially supports that party rather than the government. This type of spousal support is meant to balance financial disparities between the parties for a time after the separation.

When considering the question of spousal support we look at the “financial needs and circumstances”. The circumstances that are considered include the length of the marriage, so the longer the marriage the stronger a claim for spousal support. We look at the incomes of both partners, but it is important to remember that just because one partner make significantly more than the other does not mean an automatic claim for spousal support. The roles that each played within the marriage is looked at to see if there was a disadvantage and subsequent advantage of the other partner. Lastly, the ongoing childcare is also considered meaning that if one partner is going to continue caring for the children then they may be entitled to spousal support above the child support that they will already receive.

How Much and How Long?

Once the “if” entitlement to spousal support is determined, the next question is the “how” – how much and for how long. Spousal support is not necessarily forever. The partner who receives the support is required to work to become self-sufficient while receiving the support. Once the partner reaches self-sufficiency the spousal support stops. Each circumstance is different and so the amount of time that it takes to reach self-sufficiency is different. For instance, someone who is coming out of that traditional marriage may be nearing 60-years-old, and may not have had a job for the past 30 years, so may never find self-sufficiency, nor should they be required to at such a late time in life. Budgets of living in two separate homes will have to be made to help determine how much spousal support is needed. Spousal support is tax deductible by those who pay it and is taxable for those that receive it. So when looking at the amount of spousal support to be paid it is a good idea to take a look at the tax consequences, especially when the partner paying tax is in a higher tax bracket.

Provincial Guidelines

There are Guidelines for Spousal Support in Nova Scotia. These guidelines can computer generate a range to give you an idea of the how long and how much spousal support should be paid. But these are guidelines and not rules or laws like the child support tables. This means that they are not always used by every judge. They are just another tool that may help separating spouses.

Last Words

I hope that you can see with so many moving parts in the consideration of spousal support that independent legal advice is essential before coming to any agreement. I always would advise going to a collaboratively-trained lawyer because we have collaborative colleagues who are financial professionals specially trained with arranging finances for the transition into two homes. Making an agreement outside of court through kitchen-table conversation with independent legal advice, collaborative law or mediation are, in my humble opinion, the most successful because you are able to tailor the spousal support to each of your needs and incomes and possibly take advantage of the tax consequences of spousal support.

When Does One Spouse Need to Pay Alimony?

When both spouses work full time, many judges will not award alimony. However, when one spouse is a “dependent” spouse, a North Carolina court may award alimony. The spouse with no income or less income will receive alimony from the spouse who has a greater income. Many times, when one spouse decided to stay at home and raise children, judges will award that spouse alimony until he or she can complete the education or job training necessary to obtain gainful employment. There are many factors the court must consider when deciding whether to require alimony payments, including the following:
• The earning capacity of each spouse
• Any marital misconduct on behalf of either of the spouses
• The age of the spouses
• The emotional condition and mental state of each of the spouses
• The earned and unearned income of each spouse, including medical benefits, insurance benefits, Social Security eligibility, wages, and dividends
• The length of the marriage
• Each spouse’s education level at the time of the divorce
• The potential necessity of one or both spouses to receive more training or education to find gainful employment and meet all reasonable financial needs
• The relative debt, liabilities, and assets of each spouse
• Either spouse’s contribution as being a homemaker
• The needs of each spouse
• The separate property each spouse brought to the marriage
• The tax consequences of an alimony award
• Any other factor that is relevant to the financial circumstances of the spouses that the family court finds to be just and proper to consider
• Any contribution that one spouse made to the increase earning power, education, or job skills of the other spouse
• How one spouse’s earning power, financial obligations, and expenses will be negatively affected by that spouse having custody of the couple’s children

How is Alimony Calculated?

The amount and duration of alimony are based on multiple factors under Utah law.
When Utah courts examine the factors listed above, they have significant discretion. They may find one factor to be more pressing and important than the other factors. Or, they may determine that other factors are relevant to the couple’s financial circumstances. For example, if the spouses share a business together, or one spouse is part of a trust fund, they may consider those circumstances.

Utah judges also consider any so-called marital misconduct. Keep in mind that Utah judges have a wide range of discretion when it comes to determining when to award alimony and the amounts of the alimony payments. If you seek alimony, it is important that you have a dedicated attorney on your side who will represent your best interest.
What Constitutes Marital Misconduct?

As mentioned above, marital misconduct does come into a judge’s decision making process regarding alimony payments. Utah judges have the authority to decide not to award alimony to a spouse engaged in marital misconduct. Marital misconduct includes excessive drug or alcohol use, adultery, abandonment, or spending a significant amount of marital funds during the separation process.

What happens when one spouse has engaged in adultery?

Under Utah law, judges may require the spouse who will pay alimony to pay higher monthly payments when that spouse has committed adultery. Likewise, judges can require the spouse who committed adultery to pay alimony for a longer time. When the lower-income earner committed adultery before the separation, the judge could bar him or her from recovering alimony. When a higher-income spouse seeks to bar the lower-income spouse from receiving alimony due to adultery, the higher-earning spouse must not have committed adultery.

How Is Spousal Support Calculated?

Utah courts utilize a formula to determine the amount of temporary spousal support that the spouse requesting it will need. For permanent spousal support, however, the court will analyze the specific details of the case to determine the final spousal support amount.

Utah courts consider the following to calculate spousal support:
• The length of the marriage
• Each spouse’s needs as well as their standard of living during the marriage
• The age and health of each spouse
• Debts and assets of the spouses
• Whether one of the partners assisted the other with obtaining an education or professional training
• Whether there was domestic violence in the marriage
• What the tax impact of spousal support will be
The Importance of Earning Capacity & Standard of Living

A judge will closely examine how much income each spouse can earn based on their current education, professional training, and skill set to keep the same standard of living they had during the marriage. Based on this, the judge will analyze how marketable the spouse is and what job opportunities are available for them. The judge will also determine the time and expense it will take for the spouse to get a job.

Length in Marriage

The length that a person has to pay for spousal support is heavily based on the length of the marriage. In most cases, the time period ordered to pay spousal support will be one-half length of the marriage. However, if the marriage was longer than 10- years, the court might not set an end date to the spousal support.

How to Create a Spousal Support Agreement

It is possible for spouses to work together to create a spousal support agreement. In order to create a spousal support agreement, the couple must create and sign a written agreement or stipulation without having to go in front of a judge. This is beneficial for spouses who don’t want a judge to decide for them and want to work on the agreement together. However, the court will have to accept and sign your agreement for it to be official.
To create a spousal support agreement, follow these steps:
1. Decide on the amount and duration of the spousal support
2. Write up your agreement.
3. Sign your agreement
4. Turn in your agreement to the court for the judge to sign
5. File your agreement/stipulation after the judge signs it

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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