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How Can I Get Out Of Paying Alimony?

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How Can I Get Out Of Paying Alimony?

You might not be able to. Each situation is different. But I hear you. Many people want to get out of paying alimony. Alimony, or spousal support, is meant to help divorced spouses maintain the standard of living they experienced during their marriage. There are many different kinds of alimony, and payments can last for months, years, or even decades depending on the details of the situation. While spousal support is a key part of divorce, many people run into problems when their alimony payments become too costly.

How Does the Court Decide to Award Spousal Support?

Alimony is not a uniform, one-size-fits-all arrangement. Just the opposite, the court determines each alimony plan on a case-by-case basis. When determining how alimony should be set, the court will consider factors like: How long you and your spouse were married. (In the absence of extenuating circumstances, alimony is generally restricted to the length of the marriage itself. For example, if you were married for 10 years, your alimony would typically be limited to 10 years.)

You and your spouse’s existing debts and financial resources. This could include income, inheritance, stocks, bonds, property, and other assets. You and your spouse’s ability to earn income. This factors in variables like age, work experience, education, and health.

Whether there are minor children who need child support.

Whether either parent has child custody and needs to cover costs like school supplies, food, and transportation.
Whether either of the spouses engaged in behavior that led to the divorce (e.g. a fault divorce involving adultery).
Of course, the court will need accurate financial information to make an appropriate decision. Therefore, you will have to supply information about your debts, assets, and income, which is itemized in detail on a document called the Financial Declaration. The Financial Declaration also plays an important role when the court decides how property will be divided.

It’s a common misconception that the husband always pays alimony, while the wife is always the recipient. In reality, alimony is based on the factors listed above – not on gender. While alimony payments generally don’t start until the divorce has been finalized, the court may order temporary support payments while divorce proceedings are still underway.

How to Reduce Alimony Payments That Are Too High

The court determines alimony using the process described above, which means your payments should, at least theoretically, be set at a level your finances can reasonably accommodate. At the same time, a payor’s initial ability to provide alimony can later be impacted by issues like changes in health, changes in employment, or even changes in the recipient’s living situation.

It’s a stressful situation when your alimony payments are too high, but don’t panic: the judiciary understands that circumstances can change with time, and the courts make accommodations for precisely this scenario. If you cannot afford to keep paying alimony at the same level, you may be able to reduce what you owe.

The first step to reducing your alimony payments in Utah is to contact an experienced alimony lawyer, who will be able to help you through the legal process required to lower your payments. To begin this process, you’ll have to file a petition to modify alimony with the court.

The court will not grant you (or your spouse) an alimony modification unless you can prove that there has been a “material change of circumstances.” In this context, “material” simply means significant, so a material change could involve something like a serious illness or other medical crisis, the loss of a job, or a natural disaster. Once the material change of circumstances has been established, the court will review your alimony plan based on the same factors described earlier (e.g. income, earning ability, the need for child support, and so forth).

Additionally, the court can terminate alimony altogether if your spouse begins living with another person. This is provided by Utah Code § 30-3-5(10), which says that “alimony to a former spouse terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person.”

How Can I Get Out Of Paying Alimony?

One can define alimony as the provisions provided to the spouse after separation or divorce. If the circumstances of your marriage and divorce fall within specific parameters, you may be unable to escape paying alimony to your ex-spouse. However, there are a few things that could help you on how to avoid paying alimony. Furthermore, we would also highlight how does alimony work, how is alimony calculated, how long do you have to pay alimony, is alimony taxable and also what happens if I stop paying alimony?

Earning Less Than Your Spouse

The alimony award is normally calculated based on two significant factors: the earnings of the asking and the income of the paying spouse. Thus, you may escape the payment of alimony if you earn less or about the same amount as your spouse. Also there is no predefined divorce alimony calculator and the alimony payments or alimony deductions vary from scenario to another.

If You Got Married For a Short Period Of Time

If your marriage has lasted for two decades and you were the bread winner of the family, you are most likely going to pay for spousal support but if you were married for only a short period time, it’s unlikely that the judge would require you to help support your ex. If you are married for short period, judges often try to restore spouses to their financial situation before the marriage. A few states award alimony for merely a short period of time to help the receiving spouse time to obtain job skills or an education to be able to support himself or herself when the other spouse’s earnings is considerably more.

Request for A Vocational Evaluation

You may be able to get out of paying alimony or minimizing the amount you pay if you prove to the court that your spouse does not have any need of it. If for example the asking spouse has educational qualification that could earn him or her better paying job but he or she intentionally prefers to work part-time in a minimum wage job by asking the court to carry out a vocational evaluation.

Ask For Modification Of Termination Of Alimony Payment

In divorce law and alimony payment, the decree of permanent payment of alimony does not mean that it can never be reviewed or terminated. It only means there is no specific date for the termination of alimony payment. If your ex-spouse re-marries or start to live with another partner in some states, you may be able to get the court to cancel out the payment of alimony and child support. Again, you may be able to get the court to reduce the amount you pay in alimony if your income drops.

Pre-Planning With A Prenuptial Agreement

If you are in the process of getting married and wondering how to avoid paying alimony in the event of the marriage ending in a divorce. You may be able to circumvent the payment of alimony by getting a prenuptial agreement. People normally ask for a prenuptial agreement when they earn or have more money than their future spouse for the fact that the standard of living and the amount each spouse earns is the determinant of whether a spouse gets alimony payment or not.

Quit Any Unhappy Marriage Relationship Early Enough

The alimony amount as well depends on how long you were married. Short-term marriages are frequently not granted alimony payment. If you are not happy in your marriage and the resolution is not coming soon, the earlier you separate and seek for divorce the better to circumvent the payment of alimony.

Pay Property Taxes

If during the divorce settlement you obtain property that you have to pay taxes on, it may determine the amount of money you’d be required to pay on spousal support. Thus, you may want to acquire any property that your spouse is willing to give up if it means that you will end up paying fewer taxes than overall alimony payment.

What If My Spouse Is Capable Of Work But Refuses To Do So?

Is your former spouse refusing to work? Utah Family Code mandates that, when awarding alimony, the court must consider whether your spouse can become self-supporting within a “reasonable period of time.” You may be required to provide your spouse with alimony for a period of time after a marriage ends, but usually your ex eventually has to get a job that he or she can live on. While the court has discretion to award alimony for a longer period, and alimony may be permanent in cases where a marriage was considered to be of a “long duration,” you usually won’t have to continue providing funds to your ex on an indefinite basis. If your spouse is capable of work but refuses to do so, this should not have an impact on you… if you have a spousal support order in place that ends after a specific duration. However, if your spousal support order is conditioned on your spouse moving forward with seeking training or employment, you can sometimes go back to court and show your ex is not cooperating with the requirements.

When your marriage ends, you and your spouse can try to come to an agreement on alimony or a judge can award spousal support base on income disparities, the length of the marriage, the contributions each party made, and many other factors.

A judge may order you to pay spousal support for a set period of time, to give your spouse time to get back to work.

This could be equal to half the length of your marriage, or to some other designated period depending upon what is appropriate in your situation.

With this type of spousal support order, you can stop paying when the court order no longer requires you to. If your spouse is capable of work but refuses to get a job, that is no longer your problem once you have fulfilled your court obligations for paying support.

If your support order is conditioned on your spouse getting a job, however, then you may feel as if you are going to be stuck paying forever until your ex finds work. This is especially frustrating if your spouse is capable of work but refuses to apply for or obtain a job.

You can go to court and argue that your spouse is not making a reasonable effort to find work. The burden of proof is on you in these cases to show your spouse has opportunity, ability, and earning capacity. A vocational exam pursuant to Family Code 4331 typically involves a vocational evaluator assessing your ex’s ability to obtain employment while allowing him or herself to maintain the standard of living enjoyed during the marriage. A vocational exam can be helpful in a divorce proceeding where the couple has fundamental disagreements on alimony. Because you have to make your case to end spousal support if you are paying and feel you shouldn’t be, it is imperative you have a good legal advocate on your side.

Retirement: A payor spouse’s retirement factors into lessening alimony.

Sickness: In the event of chronic illness, the payor spouse’s alimony responsibilities may diminish. Conversely, seriously ailing dependent spouses may require more money. Death of either spouse ends alimony.

Agreement: Divorce terms occasionally elaborate circumstances where alimony is modifiable, such as stopping alimony after retirement.

You can modify your alimony payments with the help of good divorce lawyers in Utah. You can’t just stop paying your alimony. There are two correct ways to do it:

Get a written agreement and file the documents in court

You can then get an amended divorce decree. If you have agreed to change your alimony, the decision does not end with you and your ex. Have your attorney create a stipulation for both of you and sign it. You need to file it in court.

File a Petition

Consider filing a petition asking the court to modify your alimony. If you can’t agree on a new number, the court may help you. Usually, you go through the mediation process. If negotiations fail to work, you can proceed to trial.

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


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How Are Child Care Expenses Divided After Divorce?

How Are Child Care Expenses Divided After Divorce?

Child support can be granted during divorce, temporary separation, or as separate maintenance. Generally speaking, there is a legal duty for parents to support their children under the age of 18 but there are exceptions, such as if the child is emancipated or if they have a disability which means they will remain dependent even after turning 18.

The Utah guidelines determine all aspects of child support. The parent who has custody is paid child support by the non-custodial parent and is based on income. The three components of this payment include base child support, medical expenses, and child care expenses. In general, the portion of health insurance policy premiums attributed to the child (ren) is split between the parents in addition to uninsured medical expenses. As well, work-related child care expenses are also shared between the two.

Child support is calculated by accounting for the total gross income of both parents, along with the number of overnights spent in the household of each parent. Parents are required to provide proof that their income matches the amount inputted in the child support calculator, such as with pay stubs and copies of the most recent tax returns. If a parent has a reasonable explanation for why this information is not available, the other party can file a Declaration of Other Party’s Earnings to explain the income, similar to acting as a witness for the other person. In cases where one parent doesn’t work, the Court can assume the amount of a party’s earning potential based on their prior work history and an assumed 40-hour workweek. If there is no recent work history information to rely upon, or if there isn’t a specific occupation the party has had, then the Court’s assumption will be based on the federal minimum wage for a 40-hour workweek. This is how the Court accounts for the fact that the other parent can reasonably work, however, this is not done in every circumstance. Exceptions are made in the following cases of a non-temporary nature:

The cost of childcare would equal, or almost equal, the amount of money earned by the parent with custody.

• If the party has a physical or mental condition preventing them from obtaining and/or keeping a minimum wage position
• The party is undergoing training to establish basic job skills, or
• A child has unique needs requiring the parent with custody to care for them in the home
How many overnights the child (ren) spend in the parents’ respective homes also has an effect on how much child support is paid. There are three basic scenarios in terms of physical custody:
• If the child spends a minimum of 111 nights per year in the homes of each parent, this is known as joint physical custody.
• If the child spends over 225 nights per year in one parent’s home, this is sole physical custody.
• If there is more than one child and some live with one parent and some with the other parent, this is split custody.

The easiest way to calculate child support is to use the child support calculator provided on the Office of Recovery Services’ (ORS) website, HERE. If you’re unsure of how to go about using this calculator, this article will help you.

In Utah, there’s a number of factors the court will consider when determining how much child support you will have to pay, or how much child support you will receive in your divorce or custody battle. The court will consider
• the income of both of the parties;
• the number of children born to both of the parents;
• the type of physical custody awarded;
• whether one of the parties has another child support or alimony obligation in a different case;
• whether there are other children currently living with one of the parents whom that parent is obligated to support.

The Parties’ Income.

We consider the income of both parties when calculating child support: the party paying child support and the party receiving child support.

• Unemployed Parent. Occasionally, one of the parents is unemployed and therefore does not have any income. When this occurs, the court can impute income–this means that the court will look at the work history and employable skills of that unemployed parent to determine the amount of income the parent is capable of earning. For example, if the parent was previously employed making $60,000 per year, the court may determine that the parent presently has the ability to make $60,000 per year, and then the court will use this hypothetical figure to calculate the amount of child support owed/received.
• Unemployed with No Previous Work History. If the parent doesn’t have any previous work history or any employable skills, the court will likely determine that the parent has the ability to make at least minimum wage.
• Inconsistent Income. Sometimes a parent is employed in a position where their income is dependent upon commissions, where their work is seasonal, or where for any other reason their income fluctuates month to month or year to year. In this case, the court may look at the parent’s salary over the past several years to determine an average salary that the parent will be held for the purposes of calculating child support.
• Second Job or Overtime Pay. Generally, child support is calculated based on a parent’s 40-hour workweek. Overtime pay and income from a second job can be considered when calculating child support, but generally is not.
Number of children that the parties have together.

The number of children born to both of the parents has one of the most significant impacts on the amount of child support that will be paid/received. Of course, if there are more children born to the parents, the amount of child support paid/received will be higher.

Type of physical custody awarded.

The type of physical custody awarded to the parents is another factor that will significantly impact the amount of child support paid/received.

• Joint Physical Custody. Joint physical custody is determined by the number of overnights each year that the children spend with each of the parents. The amount of child support will fluctuate depending on the number of overnights the child spends with each of the parents. For example, in a joint custody situation, if a child spends 111 overnights with one parent and 254 overnights with the other parent the child support obligation will be much higher than if the child spends 183 overnights with one parent and 182 overnights with the other parent.
• Primary Physical Custody. If one party is awarded primary physical custody then we no longer consider the number of overnights the children spend with each of the parents and we calculate child support based only on the fact that primary physical custody has been awarded.

Previous Child Support or Alimony Obligation in a Different Case.

The court will consider the amount of child support or alimony (spousal support) that one of the parents has to pay in another, different case when calculating the child support owed/received in your case.

Obligation to Children in the Present Home.

If one of the parents has been remarried and there are other children of that marriage living in that parent’s home, the court will consider the financial obligation that the parent owes to those children when calculating child support.

How child support is really calculated in Utah

It seems that divorce is never fair. In fact, divorce seems to be the most complicated and confusing thing one can go up against in his or her life. But wait until you start trying to figure out how child support is calculated in Utah.

Most divorcing couples have no idea how child support is calculated in Utah, and this is part of the reason why they end up with the kind of child support arrangement they were prepared for neither financially nor emotionally.

Some people may think that child support is calculated based on the income of both parents, the number of children, and their custody arrangement, but in reality, there is so much more that’s going on when Utah courts determine child support. So you may be surprised to find out what factors are actually taken into account.

How to Calculate Child Support in Utah

Let’s start with the basics. Before digging deep to consider all factors and determine the child’s best interests, a family court will examine the gross income of both parents separately.

The gross income of a parent includes income from all the sources, including salaries, rent, social security bills, and even unemployment payments and employments benefits. However, things like housing subsidies, welfare benefits, and general assistance are typically excluded from the equation when determining child support.

If a parent refuses to work just to avoid providing the other parent with child support payments, or voluntarily takes a pay cut just to be obliged with lesser payments, or deliberately quits his/her job altogether – a Utah court will take into account the past and current earnings of the parent.

Another factor that is important when calculating child support in Salt Lake City and all across Utah is the amount of time each parent is going to spend with the child as per the existing custody arrangement, which can be sole custody, joint custody, or split custody.

Utah Child Support Calculator Formula

Under the Utah State Legislature, local courts use a certain formula to calculate the amount of monthly child support payments in each case. The following factors are taken into consideration in the formula:
• The needs of the child, including medical care, education, insurance, and if he/she has any special needs;
• The income and needs of each parent, but especially the custodial parent;
• The non-custodial parent’s ability to make monthly child support payments;
• The child’s standard of living before his/her parents were separated or divorced, especially considering the child’s financial needs to maintain the same standard of living.

Can You Ever Change the Amount of Child Support?

The parent who is obliged to make monthly child support payments is legally required to pay without delay, and cannot pay less, only more, if he/she wishes to. The court must always approve the amount of child support payments if the parents agree to any changes in child support.

If the court obliges you to pay the amount that you cannot afford – or had been able to afford for a while and now the arrangement is putting a heavy strain on your budget – you can always request a child support modification.

However, you’ll need to be legally represented by a child support attorney in order to obtain approval from the court, as you will have to prove that the child support modification is justified due to:
• Your diminished ability to earn;
• The other parent’s acquired ability to earn;
• Your changed standard of living;
• The receiving parent changing his/her marital status or living with a romantic partner who can provide for the child

If the child support arrangement is no longer working out, you can request a child support modification.

Child Support Modifications Utah

There can be many reasons why you need to modify your child support order. You could have suffered a job loss or become disabled which prevents you from working earning the income you were before the injury. Whatever your reasons for requesting a child support modification, there are certain things you need to know before going to court.

What Qualifies for Child Support Modifications?

In Utah, you can only change the amount of your child support if the difference in what you are currently ordered to pay and what the new amount you may be ordered to pay differs by 10 percent. Utah does not allow temporary modifications, requiring that that the change is expected to last at least one year. Keep in mind that a child support modification is considered a post judgement change which means there are certain steps you must follow in order to change the support amount.

How to Modify Support

There are two ways to ask the court to change the amount you are paying in support. A Motion to Adjust can be used if there is a clear difference of 10 percent between the current order and the new order, the difference is not temporary, and the proposed amount is consistent with guidelines. If any one of these criteria does not exist, you must file a Petition to Modify Child Support.

Petition to Modify Child Support

A Petition to Modify also has restrictions. If it has been three years or more since the original order, the 10 percent difference criteria must be met although the proposed support does not have to be consistent with guidelines. The change still may not be temporary. If it has been less than three years, there must be at least a 15 percent difference. You must also show that there has been a material change in one or more of the following areas:
• Availability or cost of health coverage
• Change of 30 percent or more in a parent’s income
• Custody
• Emancipation of a child
• Employment potential or ability to earn
• Legal responsibility of a parent to support others
• Medical needs of the child or children
• Relative wealth or net assets of one or both parents
• Work or education related childcare expenses

The change cannot be temporary. The modification can be requested to either decrease or increase support payments.

However, if you were the petitioner in the initial case, you will remain the petitioner in the modification as well. Documents must be filed in the same court that issued the decree and have papers served on your ex-spouse.

What Happens After the Petition is Filed?

Once the petition is filed, the court issues a Domestic Relations Injunction. This orders you and your ex-spouse not to harass each other, change insurance or beneficiary coverage, transfer property or take an unexpected trip with the minor children while the case is pending. As soon as the petition is filed, the petitioner must abide by the injunction while the respondent must begin abiding by it when they are served the documents.

What If I am the Respondent?

If you are served with a Petition to Modify Support, you have 21 days if you were served in Utah or 30 days if served in another state to answer the petition. Both you and your ex-spouse must provide initial disclosures which include a financial declaration. It is possible the court will order both of you to try to come to an agreement through mediation. If you agree with the petition, you can file a stipulation by checking the “and Stipulation” box on the first page and sign it. Keep in mind both you and your ex-spouse must sign the stipulation. If you come to an agreement after mediation or negotiation, you can complete a new Petition to Modify and write “Amended” on the top of the first page.

Process for Motion to Adjust

The process for the Motion to Adjust is easier than filing a petition, but it still has certain post judgement requirements. Judges in Utah may rule on all types of motions, but commissioners are assigned to hear divorce case motions as well as other family law issues. You will want to contact the court where you filed the motion to find out whether it will be decided by a judge or a commissioner. The important difference is that a commissioner will simply make a recommendation to a judge who then makes the modification an order of the court. If you disagree with the commissioner’s ruling, you can file an Objection to a Commissioner’s Recommendation.

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
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How Are Assets Divided During Divorce?

What To Do When Your Divorce Has Turned Ugly
How Are Assets Divided During Divorce?

As a newlywed, you likely never gave a second thought about whether you lived in a community property state or about terms like equitable distribution. When a marriage ends in divorce, however, it usually (and unfortunately) involves tough decisions and difficult discussions — including those concerning the fair division of property once shared during the union.

In an ideal situation, the couple can work together to decide how to split up property, debts and assets. When that’s just not possible because of a dispute or a complex issue regarding the ownership or value of property, both spouses may have to hire attorneys to negotiate on their behalf or even go to court and ask a judge to divide the marital estate (property owned jointly by the couple).

There are typically three factors that play into deciding how to divide up the property: the type of divorce you’re seeking, what kind of property you own and the state where you currently reside.

Types of Divorce

Although most people don’t get the opportunity to thoughtfully decide which type of divorce they would like to have, there are options for those willing to work together.

For example, in an uncontested divorce, both parties come to an agreement on all the terms of the divorce and file the papers with the court. There is usually no formal trial in this scenario. An uncontested divorce can be much less expensive than a contested divorce, saving you time, court costs and legal fees, as well as helping you avoid protracted disputes with your spouse.

Contested divorces are what stereotypically come to mind when we think of divorce. These are cases in which there’s a lot of disagreement over key areas such as property, children and spousal support. Each spouse is represented by an attorney, and a judge oversees the case until settlement. This type of divorce can be long, costly and potentially contentious.

Others types of divorce fall somewhere in the middle. Mediation, arbitration and collaborative options allow the couple to be independently represented by counsel without incurring the full costs of a trial.

The option that will work best for any couple depends on the level of disagreements between the spouses and the willingness to work together toward a resolution.

What kind of property you own

Property division is a big issue during a divorce. One of the most common questions is, “Who gets the house?”
State law will usually dictates the divvying up of your property. It’s based on whether you reside in a separate property state or a community property state:

Separate property belongs only to one spouse, such as something you owned before getting married, gifts or inheritances specifically given to you or the proceeds of a pension that vested before the marriage.

Community property is everything that both of you earned and acquired during your marriage (e.g., the money from your job that you placed into a joint checking account and used to pay bills or debts during your marriage).

Property — like a house — bought with a combination of separate and community funds is generally considered community property.

If the spouse who owned separate property, placed the separate property in joint title with the other spouse, or “commingled” the separate property with marital property, then, the separate property loses its status as separate property, and becomes marital property. Black’s Law Dictionary defines “commingle” as “the putting together of money from several sources into … one fund.” A court is to divide the marital property equitably between the spouses.

Pensions and retirement benefits are marital property if a spouse acquired the benefits during the marriage. If a spouse acquired the benefits from employment that occurred both during the marriage and before the marriage, then, the portion of the benefits that the spouse acquired during the marriage, are divisible marital property, and the portion of the benefits that the spouse acquired during the marriage is separate property. A court is to determine the portion of the benefits that are marital property and divide this portion between the spouses. Military disability benefits are separate property, and may not be divided between spouses. If a military member elects to waive retirement benefits in order to receive disability benefits, the portions of retirement pay that the military member waives, are also separate property and may not be divided between the spouses. However, if a military member chooses to waive retirement benefits in order to receive disability, the court may order the military member to reimburse his spouse for money lost due to the waiver of retirement benefits. Also, property purchased with military disability benefits may be marital property.

Academic degrees and professional licenses are not divisible marital property. However, if a spouse helped support their spouse in obtaining a degree or license, a court may order the degree or license holder to give a cash award to the other spouse.

A personal injury settlement, which compensates for lost wages during the marriage, and for uninsured medical expenses incurred during the marriage, is marital property. However, a personal injury settlement that compensates for future lost wages, future medical expenses, pain and suffering, and mental anguish is separate property.

Disability insurance benefits replacing post-divorce wages, are separate property. A workers’ compensation award that compensates for lost wages during the marriage is marital, but any part of a worker’s compensation award that compensates for wages after the divorce is separate property.

A severance payment, paid to replace future wages earned after a divorce, is separate property.

Social Security benefits are separate property.

If property is marital, what does a court consider in deciding how to divide it?

The law does not require a court to divide marital property equally. Some of the factors that courts consider in how to divide marital property are: The contribution each spouse made to the marital estate. A non-working, or homemaking, spouse is considered to have made a contribution to the marital estate; a court thus may award a large portion of the marital property to a spouse who did not work. The need of each party is not a factor in deciding how to divide marital property. However, a court may consider the need of a custodial parent, in caring for the children.

A court is not to consider marital misconduct (such as adultery and spousal abuse) in dividing property. The purpose of dividing property is to give each party an equitable share, not to punish spouses for wrongdoing.
A court may consider economic fault in awarding marital property. “Economic fault” may include wasting assets, or maintaining a secret bank account for a lover.

How courts actually divide property

In some cases, a court will award an equal share of the property to each spouse. In other cases, a court will award a greater share of the property to one spouse, and order the other spouse to pay money to the other spouse as compensation.

Also, in many cases, a court will order each spouse to pay a portion of the marital debt. If a debt was acquired during the marriage, it is considered a marital debt, even if the name of only one spouse is one the debt.

The state where you currently reside

Courts divide property through one of two ways: community property or equitable distribution. Debts are divided according to the same principles. Here is how property is divided up depending on where you live:

Community property states: In some states, all married property is classified as either community or separate. When you get divorced, community property is generally divided equally between the spouses, while each spouse gets to keep his or her separate property.

Equitable distribution: In all other states, assets and earnings accumulated during marriages are divided equitably (fairly) but not necessarily equally. Some of these states may order one party to use separate property to make the settlement fair to both spouses.

Note that division of property doesn’t necessarily mean everything gets physically divided up equally. Instead, the court may grant each spouse a percentage of the property’s total value.

Dividing up property yourselves

If you and your spouse are going to try to divide your property yourselves, here are some steps to get you started:

List your belongings.

Working together, make a list of all of the items that you own jointly. Of course, you can omit items both of you agree are personal things of insignificant value.

Value the property.

Try to agree on the value of anything worth more than a specific agreed amount, say $100 or $500. If there is a house, a business or anything that’s difficult to value, get an opinion about that from some agreed-upon outside authority.

Decide on the logical owner.

Now go through your main list, item by item, and decide whether there is some good reason to have each piece of property go to one or the other of you. Start with the biggest value items and see how far you can get.

Get the judge’s approval.

If you and your spouse can agree on dividing the property you own together, the court will normally approve whatever agreement you’ve reached. The only exception is when a party who doesn’t have a lawyer seems to have agreed to take a lot less than half of the property.

Navigating the Division of Assets in Divorce

To further complicate the division of assets and debts in a divorce, if you do not have children and you and your spouse own the home together, neither of you has a legal right to kick the other out. You can request the other individual leave, however, you cannot enforce it. If you and your partner do not decide on suitable property distribution, the court will choose for you throughout the divorce proceedings or with the assistance of your attorney.

If your partner alters the locks or security system or otherwise prohibits you from going into the house, you can call the authorities. The police will most likely direct him or her to let you back in. When you both own the house, the only time you can insist your partner leave is if your partner has actually committed domestic violence resulting in a mandated restraining order.

Keeping Assets Separate in Marriage

Some couples prefer to keep their assets separate in marriage, whether by maintaining different homes or separate property or bank accounts. This is less common, but it simplifies divorce proceedings. Separate property is also referred to as non-marital property, meaning that it belongs to only one spouse. Courts usually don’t divide separate property during a divorce, and it stays with the person who acquired it.

Additional assets that are likely to be automatically bequeathed to one spouse over the other consist of the following:
• Injury awards received by that partner
• Pension earnings prior to the marital relationship
• Presents and inheritances offered specifically to that partner
• Privately owned business if it was not operated by both partners
• Residential or commercial property acquired separately

But if residential or commercial property is acquired with a mix of community funds, as long as a partner has the ability to prove that a variety of funds were used to purchase or maintain them, it would be considered marital property. Individual property that was blended together with joint property usually ends up being community property.

Some divorces are complicated scenarios best untangled by a dispute resolution lawyer with experience in the laws of property distribution.

What Items Are Considered Assets in a Divorce?

There is a fairly standard list of items that are considered assets in a divorce that is true in most states. This list includes a home or real estate, bank accounts, retirement accounts, any family businesses. Other items that may be counted as assets include vehicles, life insurance policies, household goods, and more.

When deciding how those assets are divided, it is good to weigh the pros and cons. Do you want a lengthy and expensive court battle?

It is a winning scenario for a separating couple to choose to divide their home and financial obligations themselves (with or without the assistance of a neutral third party like a mediator).

This is usually much less expensive than leaving it to the judge. If a couple cannot agree, they can take their case to the court, which uses state law to divide the residential or commercial property. If children or large estates are involved, it is necessary to take the matter to court.

Regardless, it is a good idea to get a consultation with a divorce attorney to know your rights and responsibilities.

What Are Marital Assets and How Are They Divided?

When discussing your marital property, assets and debts, it is crucial to realize that bank accounts, investments, real estate, and most items of property acquired during the marriage are often included and may be considered marital property. Rather than offering the property to one party, the court may use a property equitable distribution concept and award each spouse a percentage of the overall worth of the sale of the property.

Each partner will get personal effects, possessions, and financial obligations whose worth amounts to his or her portion. It is unlawful for either partner to conceal properties in order to protect them during the divorce process.

Final Considerations Regarding the Divorce

During difficult divorces, people are sometimes pushed to the brink and make inadvisable choices. Whatever you do, do not lie or declare that domestic violence has happened simply to remove your partner from the house, retaliate, or increase your portion of the marital assets upon divorce.

When a judge believes this has occurred, the individual making the accusation might actually be further penalized and be asked to leave their family’s home. It will also likely prejudice the judge against him or her throughout future settlements. If you are a victim, the regional domestic violence hotline is available to help, and your attorney will be able to assist you as well.

Dividing pensions and retirement benefits

There are two ways a court may divide a pension:

1. The Present Value method. A court determines the present value of the pension, awards the pension to the employee spouse, and orders the employee spouse to reimburse the other spouse to compensate for the value of the pension.

2. The Deferred Distribution method. Under the deferred distribution method, the court will sign a Qualified Domestic Relations Order (“QDRO”). A QDRO will direct that a portion of the retirement benefits be paid to the employee spouse, and that the remaining portion of the retirement benefits be paid to the non-employee spouse. You or your attorney will then send the QDRO to the entity that pays the benefits. The payor will then pay a portion of the benefits to the employee spouse, and a portion of the benefits to the non-employee spouse, as the QDRO directs.

When a QDRO is needed, an attorney for one of the parties will draft the QDRO, and submit the QDRO to the judge for his signature. A QDRO is extremely complicated to draft. You should never attempt to draft a QDRO yourself.

Instead, you should hire a QDRO specialist. Many lawyers don’t even draft QDROs themselves – instead, they hire QDRO specialists whenever they need a QDRO drafted. If you are in a divorce case, and you need a QDRO, make sure that your lawyer hires a QDRO specialist to draft a QDRO for you.

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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Does Divorce Have To Be Filed In The Same State As The Marriage?

Does Divorce Have To Be Filed In The Same State As The Marriage?

Have you decided to get a divorce? You may have thought this was the beginning of the end of the tough decisions you will need to face, but there are many more decisions and processes that will need to be navigated as you start on your path to a new chapter in your life. The first question you will probably face after deciding on divorce is, where do I actually file for divorce? If you were married in another state, you may be wondering if you have to go back to that state to get a divorce. Most all states have residency requirements for divorce filers. We will discuss more on where you can file for divorce here.

The road to divorce is not always straightforward. Some spouses decide to separate while still living together, but others will enter divorce proceedings after years of living apart—sometimes after one spouse has moved to a different state. Divorces involving spouses living in different states are often more complicated than those filed by spouses who live in the same community.

Do I Have To File For Divorce In The Same State I Got Married?

In order to be able to grant a divorce, a state court must have jurisdiction over the divorce proceedings. Jurisdiction means that the court has the power to rule over the procedures as well as decide the outcome of the case. This is why, in most cases, a person will petition for divorce in the state where he or she lives. Depending on how long he or she has lived in that state, it is most common that the court will have jurisdiction over a state resident to hear his or her divorce case.

Prior to filing for divorce, you should verify your state’s residency requirements. You should also check on the local county residency requirements. Do so promptly. If your spouse lives in another state, he or she may be looking to file for divorce there. Having a pending divorce case out of state can be logistically difficult and very inconvenient. You may also, however, want to investigate the state’s laws on divorce to see which is most favorable to your situation.

To file for divorce, you must meet the state’s residency requirements. There are a few different ways to meet the residency requirements. If you or your spouse has been living in Utah continuously for a minimum of two years prior to the initiating of the divorce case, then you will meet the residency requirements. Alternately, if you or your spouse has been living in Utah continuously for a minimum of one year prior to the initiating of the divorce case and you either got married in Utah, lived in Utah as a married couple, or the grounds for divorce occurred in Utah, then you will meet the residency requirements. Lastly, you can meet the residency requirements if both you and your spouse are residents of Utah the day the divorce is initiated and the grounds for your divorce occurred in Utah.

How to Determine Which Court Has Jurisdiction Over Your Divorce

Couples can only file for a divorce in the state and county that has jurisdiction to hear the case. However, you do not necessarily have to file in the state that issued your marriage license or even the one in which you currently live. The jurisdiction for your divorce case will depend on both spouses’ locations and how long each one has lived there.

While the divorce process is much the same in every state, the specific rules and requirements vary depending on the jurisdiction. For example, you may be compelled to file your divorce in a specific state if:

You do not meet residency requirements.

Each state has a minimum length of time that a spouse must live there before he or she can get a divorce in the state. Usually, only one spouse will need to meet the residency requirement, and that spouse will have to file the paperwork for the divorce to be heard. If you move to Utah and do not meet the residency requirement, you may only be eligible to file in the state where you and your spouse cohabitated.

Your spouse is first to file.

If two different states are eligible to have jurisdiction over a marriage, the state that takes jurisdiction will be the state where a divorce petition is first filed. This could give the filing spouse an advantage in a contested divorce, since he or she will not have to travel as far to participate in hearings and the trial. The out-of-state spouse may also have to hire an attorney in the state where the divorce is pending instead of using an attorney from his or her home state.

Your children live in another state.

If your children attend school in the state where your spouse lives and your spouse meets residency requirements, filing in your spouse’s state may be less stressful for the children. However, you should understand the state’s requirements regarding child support, child custody agreements, and spousal support.

How to File for Divorce When Spouses Reside in Different States

While it is fairly common for someone to move to a different state once they separate from their spouse, doing so can present potential difficulties when formally filing for divorce and reaching final resolutions. All states require that the spouse who files for divorce be a resident of the state in which they file their divorce petition.

The amount of time required for establishing residency varies from state to state, but generally ranges from six months to one year. Residency can be defined as having a physical presence as well as the intent to remain indefinitely in that state. You are allowed to work outside of the state while establishing residency, as long as you are actually living in the state in which you are trying to establish residency.

If you and your spouse are now residing in separate states, then each of you maintains the right to file for a divorce in your current home states. As a matter of convenience, it may be best to file in your state before your spouse files in theirs; you may be required to travel there for divorce proceedings, as well as to arrange and change child support and custody orders, and property settlement agreements.

Divorce Process

Once a divorce has been officially filed and your out-of-state spouse has been properly notified, the actual divorce proceedings will be similar to if both of you lived in the same state.

Your divorce petition will be served to your out-of-state spouse, who will then have the opportunity to legally respond to the petition. The odds are that your spouse in another state will hire an attorney within the state that the divorce was filed because this will provide them with the best opportunity to contest the divorce.

The out-of-state spouse will also have to handle their own travel expenses to your local courthouse if they are trying to participate in hearings and a potential trial.

Differences in State Laws

If your divorce case is rather straightforward and both spouses have a mutual agreement for the overall material terms of the divorce, then it may not matter too much in terms of which state the filing occurred. However, state laws can make a big difference in a divorce proceeding in terms of some common issues, including child custody, spousal support, child support and the division of property. All states will have different child support formulas that determine how much one spouse will pay another. Also it’s important to know that there are some states that consider marital property as community property, which means the property will be split 50/50 automatically, whereas many other states will utilize an approach that pushes for equitable distribution.

Full Faith and Credit

The Full Faith and Credit Clause within the Constitution asserts that courts must honor any divorce proceeding that is granted within another state because states must always honor any court orders that come from other states. But you must abide by all of the above stipulations in order for a different state to honor your divorce petition!

What Do I Need to Do to File for Divorce If My Spouse Lives in a Different State?

As previously mentioned, the first step will be to check your individual state’s divorce residency requirements.

You can file for divorce in a state other than the state in which you are married, as long as you meet residency requirements. If you do not meet the residency requirements for the state in which you are attempting to file for divorce, your divorce complaint can be rejected.

If both spouses file for divorce at the same time, which is referred to as concurrent filing, the general rule is that whichever petition is filed and served first will proceed to court. Therefore, if you wish to file in a state that is more favorable to you in the divorce, you should file as soon as possible to avoid the issue. Once you file, then make sure that your serve the papers to your spouse, which means that they are in-person (or as close as possible) notified about the divorce and have the papers for the divorce process in their hands. The actual divorce process will vary according to the state in which the divorce was filed, as well as property issues and child custody. Both parties must participate in all steps of the divorce process, and if any of the requirements for a legal divorce are not met, the validity of the divorce status could be affected. However, the process is typically the same once the initial petition for divorce has been filed by either spouse in the state in which they reside:

Notification:

The other spouse must be notified or served with the divorce papers; they then have twenty to thirty days to respond to the complaint. If they fail to do so, a judge will generally grant the petition. If the spouse cannot be located, such as if they moved to a different state without notifying anyone of their whereabouts, they may still be notified through “service by publication.” An example of this would be placing a notification in the newspaper.

Temporary or Preliminary Hearing:

This initial meeting is for the spouses, their attorneys, and the judge. A preliminary hearing is meant to resolve matters that need to be addressed immediately, which cannot wait until the actual trial. Examples of this include requesting temporary child support or custody, requesting exclusive use of the marital residence, and requesting instructions regarding insurance.

Negotiations, Mediation, and Agreements:

At this point the parties may attempt to solve their differences through negotiations, mediation, or other forms of alternative dispute resolution such as early neutral evaluation.

Trial:

Issues not addressed through negotiation must be addressed through trial. Each side presents their arguments as well as evidence in support of their requests. Trial is not always required, if the parties are amicable and are able to come to an agreement through mediation alone.

Post-Trial Issues:

Ideally, all issues will be settled during trial. However, additional legal issues may present themselves after the trial. Appeals and child custody adjustment are some common examples.

The Pros and Cons of Filing for Divorce in a Different State

Because each state has different laws regarding divorce and community property rules, it may be more advantageous to file for divorce in one state, as opposed to the other. Some common issues to consider include:

Does the state allow for a no fault divorce?

All states allow for some form of a no fault divorce, which are generally smoother cases. No fault divorces are essentially those in which the couple claims “irreconcilable differences” as the reason for divorce. However, some states still allow a spouse to allege that the divorce resulted from some fault of the other spouse. In such cases, the spouse’s misconduct may cause the court to award higher alimony payments, a larger share of marital property, etc.

How does the state handle the distribution of property?

Each state’s laws determine whether they follow community property distribution, or equitable distribution of marital property. In community property states, the marital property is divided evenly. In equitable distribution states, the marital property is divided in a way that is fair and appropriate. Once again, it is possible to file for divorce in a community property state even if the marriage is in an equitable distribution state; the only determining factor is residency.

How does the state handle child support and alimony?

Every state applies their own formula when calculating child support and alimony payments. Some states are stricter, whereas others are more lenient. As logistics are concerned, it may be more practical to file in your own state as opposed to letting the out of state spouse file for divorce. However, the out of state spouse may live in a community property state, which may be more advantageous. It is a good idea to do your research and decide which works best for you.

Should I Hire an Attorney When Filing for Divorce from a Spouse Living in a Different State?

The factors of your specific case will determine whether or not you should hire an attorney to handle your out of state divorce. A skilled and knowledgeable divorce lawyer can help educate you on your state’s residency requirements, as well as advise you in regards to which is the best state in which to file for divorce.

Additionally, they will assist you fulfilling procedural requirements, and represent your interests in court while reaching a fair resolution. Couples will always break up in unique ways, but typically there will be a point in which a married couple will separate and live apart prior to completing their divorce settlement. When a separated couple lives in different states, the divorce settlement process can become somewhat more complicated.

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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Michael R. Anderson, JD

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

Telephone: (801) 676-5506

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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Absolute Divorce VS. Limited Divorce

What To Do When Your Divorce Has Turned Ugly
Absolute Divorce VS. Limited Divorce

When a marriage is over, the most common path people take is to file for a divorce to end things permanently. But in some cases, couples aren’t quite ready to take that final step. In many states, the law provides an alternative—a middle ground so to speak. When people talk about divorce, an absolute divorce is usually what they’re referring to. It’s called “absolute” because it’s the type of divorce that ends the marriage once and for all. In most states, the laws simply refer to “divorce” or “dissolution of marriage.”

In an absolute divorce, the court (or the couple’s marital settlement agreement) will address all of the legal issues involved in ending the marriage, such as alimony, child support, child custody, and property division. Once the court has issued a judgment (or “decree”) of absolute divorce, the spouses no longer have any of the rights or privileges that arose when they got married. These include things like the ability to file a joint income tax return, the right to automatically inherit a share of each other’s estate, and the chance to obtain insurance benefits through the other spouse’s employer. In order to obtain an absolute divorce, you must meet your state’s residency requirements, and you must have “grounds” (acceptable legal reasons) for ending the marriage.

The laws in some states use different terms including “dissolution of marriage” and “absolute divorce”—to mean basically the same thing as plain old divorce: a legal proceeding that will permanently end a marriage, along with all of the rights and privileges that come with marriage. Once a judge finalizes an absolute divorce, both spouses are free to remarry.

You might also hear the terms “contested divorce” and “uncontested divorce.” These don’t refer to the effect of divorce—the legal end of the marriage—but rather to the process of getting there. In an uncontested divorce, the spouses have worked out a settlement agreement on the issues in their divorce rather than having a judge make the decisions for them. The agreement must at least include provisions for dividing the couple’s property and debts, alimony, and if they have minor children—custody, parenting arrangements, and child support. Without an agreement, couples will need to go through the process of getting a contested divorce which can be expensive, time consuming, and stressful. If you want the advantages of an uncontested divorce but are having trouble resolving your differences, divorce mediation could help you work through the stumbling blocks and come up with solutions.

What Are Requirements for Absolute Divorce?

Although the laws on divorce are quite different from state to state, there are basically three sets of requirements for getting a divorce: residency requirements, having an acceptable reason for divorce, and going through the proper legal steps.

Residency Requirements for Absolute Divorce

State laws have residency requirements for divorce to prevent people from filing for divorce in a state where they haven’t been living, just so they can take advantage of the laws in that state. These requirements also make it more likely that the legal proceedings will be in courts that are accessible to both spouses. Depending on the state, the amount of time you must have lived there before filing for divorce typically ranges from three months (in Colorado) to six months (in California, Utah Texas, and Florida). In some states, the residency requirement depends on the circumstances, including where you were married and where the reason for your divorce happened.

Grounds for Absolute Divorce

Whenever you file for divorce, you must state the reason you want to end your marriage and that reason must be one of the grounds for divorce allowed in your state. Historically, these grounds were based on a spouse’s misconduct (or fault), like adultery or desertion. But all state laws now include some variation of no-fault divorce, such an “irreconcilable differences,” “irretrievable breakdown of the marriage,” or separation for a certain amount of time. And several states allow only no-fault divorce grounds. If you want a divorce for a no-fault reason, you generally only have to check the appropriate box on your divorce papers, without providing proof. But some states (like Wisconsin) will require that you testify under oath about the breakdown in your marriage, and if your spouse disagrees, you might have to meet further requirements, such as a lengthy separation, before you can get divorced.

Legal Steps for Getting an Absolute Divorce

The divorce process involves a number of legal steps, starting with filing the initial divorce papers (usually a petition or complaint, along with various other forms) and paying a filing fee. If you have a lawyer, your attorney will take care of all the paperwork and filing for you. But depending on your situation particularly if you have an uncontested divorce you might be able to handle it by yourself, or you can get help with the paperwork from an online divorce service.

Generally, the spouse who starts the process will have to serve the divorce documents on the other spouse, who will have a certain amount of time to file an answer. In some states, you may skip these steps after filing for an uncontested divorce, when you’ve included the written settlement agreement signed by both spouses.

At this point, the legal steps will depend on whether you have a contested or uncontested divorce, as well as the laws in your state and the particular circumstances in your case. For instance, you might be required to exchange detailed information about your finances, take a parenting class, or participate in mediation of certain disputes (especially unresolved disagreements about child custody). With contested divorces, you’ll go through the legal “discovery” process for gathering evidence, such as custody evaluations or real estate appraisals, and you might have several intermediate court hearings on issues like requests for temporary support or custody orders.

Generally, the process will end with a final hearing, either a trial on any unresolved issues or a brief hearing when the judge will review your settlement agreement and ask you a few questions. But in some states, you might not have to attend a final hearing for an uncontested divorce. Instead, the judge will simply review your agreement and other paperwork, then will sign your final divorce decree if everything is in order. Many states have a mandatory waiting period before the judge may finalize your divorce, even when your case is uncontested.

Limited Divorce

For folks outside the legal profession, the fact that there can be more than one kind of divorce may come as a surprise. A divorce is a divorce, right? Marriage over, drop the mic, move on. And that would be correct if you were talking about actually ending the marriage. But in a few states, something called “limited” divorce enters the picture.

Does limited divorce mean that you’re kind of divorced? In one way it does, because a limited divorce has some of the same effects as an absolute divorce in terms of the rights and liabilities spouses have. The major difference between the two is that when a limited divorce is over, you’re still married. Unlike absolute divorce, you’re not free to marry anyone else.

The reality is that “limited divorce” is actually akin to a court-sanctioned separation. In the states that have this option, you file your limited-divorce papers (known as a “complaint” or “petition”) with the court, the same way you would start an absolute divorce. Normally, there are similar rules, like meeting residency requirements and having grounds. And a limited divorce can usually address the same issues (custody and so on) that you find in absolute divorce.

Only a few states, actually use the term “limited divorce.” Other states, like New Jersey and Virginia, refer to limited divorce as “divorce from bed and board.” On the whole though, most states that provide for limited divorce use the term “legal separation.”

You should be aware that not all states allow limited divorce or legal separation, no matter what it’s called. And in states that do, there may be limitations on using it.

Why Would Anyone Choose a Limited Divorce?

A limited divorce can be just as time consuming, anxiety laden, and expensive (think legal fees) as an absolute divorce. So it’s reasonable to wonder why anyone would opt for it if you’re still going to be married when it’s over. Actually, there are a number of potential reasons.

• Although divorce doesn’t have the stigma it once did, there are still people who are concerned about “how it looks,” In those circles, a legal separation may be more socially acceptable.
• A person’s religion might not condone an absolute divorce.
• If a state has stricter grounds for absolute divorce than limited divorce, spouses who don’t yet meet the standards for an absolute divorce may choose limited divorce as an interim measure. And some states allow you to eventually convert a limited divorce to an absolute divorce.
• Sometimes a couple feel they need to be apart, but aren’t ready to give up on the marriage. A legal separation can address issues regarding the children, support, and property, so there’s at least some stability in those areas while the spouses try to figure things out.
• There may be practical reasons—usually finance related—to stay legally married. For example, one spouse might need to continue receiving health insurance coverage through the other spouse’s plan. Or, income tax implications may come into play. But in those situations, spouses need to do their homework regarding insurance company or IRS rules governing legal separations, to make sure what they’re planning to do is permissible.

Alternatives to Absolute Divorce

Most couples don’t decide to end their marriage without first thinking about other options. Typically, they’ve already tried to repair the damaged relationship with individual therapy, couples counseling, or even a trial separation. If you’ve tried to work things out with your spouse and haven’t been successful, but you’re still not ready to jump on the divorce track, you may have other options.

Many states offer couples the option to file for a legal separation, which is sometimes called “limited divorce” or “divorce from bed and board.” These different terms refer to a legal status that doesn’t end the marriage (and doesn’t allow either spouse to remarry) but allows judges to issue orders dealing with child custody, child support, alimony, and property division. Couples may also sign a separation agreement to settle these issues for themselves. Although limited divorce or legal separation is uncommon, it’s still available for couples who need it.

For example, if you and your spouse practice a religion that prohibits divorce, legal separation or limited divorce may be your preferred option for living separate and apart, while continuing to be faithful to your church. For other couples, an absolute divorce may simply be too permanent of an option, but they still want to disentangle their legal and financial obligations. If you aren’t sure which option is right for you, it may be time to speak with a qualified family lawyer.

You may have heard about “separation agreements,” sometimes called “divorce settlement agreements” or “property settlement agreements.” These are documents that are prepared and signed after couples have settled all their marital issues, usually with the aid of their lawyers or through mediation.

In terms of whether a separation agreement is considered a legal separation, the answer can be a little confusing. As you saw above, a true legal separation is one that goes through the courts. If you live in a state with legal separation (or limited divorce) and you reach a separation agreement with your spouse, you typically will have to submit the agreement for a judge’s approval in order for the agreement to be part of the separation or limited divorce judgment. But in states without legal separation, the court doesn’t have to be involved with a separation agreement. That said, a separation agreement that’s properly signed by both spouses is a legally binding document. It’s essentially a contract between them. So if one spouse violates its terms, the other spouse can go to court to force compliance, just as you would with any breach of contract. (Except the case would be heard in family court rather than a general civil court.)

The beauty of separation agreements is that if you eventually decide to file a divorce complaint, whether absolute or limited, the fact that you’ve already resolved all your issues will make the divorce process easier. The court will consider your case “uncontested,” and your separation agreement will become a part of the divorce judgment.

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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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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Do I Still Pay Alimony If My Ex Gets Remarried?

Types of Alimony in Utah
Do I Still Pay Alimony If My Ex Gets Remarried?

Usually no. There is a Utah law that states that you don’t continue paying alimony if your ex gets remarried; however, depending on how your decree of divorce reads, it may be different. You always want a licensed divorce lawyer to look it over and give you legal advice before you stop paying. There are also other ways to terminate alimony in Utah.

First, Utah law provides that alimony “automatically terminates” when the receiving spouse gets remarried or dies.
Second, alimony terminates “upon establishment” by the party paying alimony that the receiving spouse “is cohabitating with another person.” This means you have to file a formal petition with the Court asking it to make a determination your ex-spouse is cohabitating in order to terminate alimony. This is situation that is easy to allege but challenging to prove in practice. “Cohabitation” means two people living together in a marriage-like relationship without actually being married to each other.

For example, having a shared residence for more than a brief period, sexual intimacy, sharing household expenses and financial accounts, making important decisions together, being free to come and go from their shared residence whenever they please, etc. It must be much more than a mere dating relationship coupled with adult sleepovers. The Utah Supreme Court has also clarified that because the statute says you must prove your ex-spouse “is” cohabitating that means you have to prove current cohabitation; not that your ex cohabitated in the past but stopped doing so before you came to court. For this reason it is important to gather as much evidence supporting a cohabitation claim before going to court and not to give your ex-spouse any reason to think you will be filing a petition to terminate alimony before you actually file it.

Third, you may be able to terminate or reduce alimony if you can show a substantial, material, and unforeseeable change in circumstance has occurred since the original alimony order went into effect. Such changes may include unanticipated changes in employment/income for either spouse, medical issues, moves, retirement, etc. The change must be “substantial” meaning the fact one spouse receives a $2 per hour pay raise probably would not cut it, but if a spouse lost a major business client that cut their income by a 1/3 that would likely constitute a substantial change in circumstance. Another key element you have to establish however that is the change in circumstance was not foreseeable when the original order went into effect. That means if the change in circumstance could reasonably have been anticipated at the time the original order went into effect you cannot modify it. For example, if the receiving spouse is still in college when they are awarded alimony the fact they subsequently graduate would not be considered an unforeseen change in circumstance. If you are able to establish a substantial, material, and unforeseen change in circumstance then the Court may allow you to relitigate the issue of whether to award alimony and, if so, how much and for how long.

Fourth, a divorcing couple can agree to terminate alimony early on. This is not common as you might imagine. But sometimes spouses work out deals to trade property in return for an early termination date or reduced monthly payment. Or the paying spouse might offer the receiving spouse a lump-sum payment in return for alimony going away right now. And on some occasions the parties may agree to dispense with alimony if the paying spouse has custody of their children in which case it does not make sense to pay alimony if the receiving spouse has to give it right back in the form of child support.

Spousal support can change hands for a short period of time, or the paying spouse may have to pay the receiving spouse until one passes away. When a court orders spousal support, these are the factors the judge must consider:
• Each party’s earning capacity
• How much the supported party contributed to the supporting party’s education, career or licensure
• The supporting party’s ability to pay
• Each spouse’s needs based on the standard of living established during the marriage
• Each spouse’s assets and obligations
• The duration of the marriage
• Each spouse’s age and health
• Evidence of a history of domestic violence or criminal convictions
• Tax repercussions for each spouse
• The balance of hardships to each party
• The ultimate goal that the supported party will be self-supporting within a reasonable amount of time
• Any other factors the court feels are just and equitable

Why One Party May Have to Pay

Spousal support is typically only meant to help the lower-earning spouse to get on his or her feet. A judge may order it for a few years or longer, depending on the amount of time it should take for the other party to become self-sufficient. In cases where one spouse stayed home to care for the children and the home while the other was the only income-earner, the court may award the stay-at-home spouse alimony so that he or she can gain the skills necessary to get a job and be competitive in the labor market. Likewise, in cases where one spouse stayed home to “hold down the fort” while the other went to school or furthered his or her career, the judge may order spousal support.

If I Get Remarried, Do I Still Have to Pay Alimony?

When you remarry someone after a previous marriage, you’re still obligated to pay alimony to your former spouse.

(Only if you have a court order, though otherwise, you aren’t legally obligated to pay spousal support.) However, if your former spouse remarries the one to whom you’re paying alimony – your obligation most likely ends.

How Long Do You Have To Pay Alimony?

You have to pay alimony for as long as the judge orders it. Most spousal support orders come with conditions that will terminate spousal support. For example, if the receiving spouse remarries, he or she won’t be entitled to spousal support payments any longer; there’s a new spouse in the picture who can contribute to that person’s income.

You can ask the judge in your case to modify your spousal support order, though, even if none of the conditions that would ordinarily stop alimony payments have been met. You must show the court that circumstances have changed significantly. For example, if your income changes drastically and you can no longer afford to pay, you can petition the court to change your order. If the supported spouse moves in with someone, or if he or she starts making a lot more money, you can also ask the court to change your order. Your best bet is to consult with an attorney if you want to change the amount of spousal support you must pay.

Do You Need to Talk to a Lawyer About Spousal Support?

Alimony has existed since ancient times. It developed to protect ex-wives raising minor children following separation from their primary economic providers, i.e., husbands. Traditionally, women had limited occupational opportunities outside the household necessitating continued financial support from ex-spouses. Once a woman remarried, however, her new husband became responsible for her financial wellbeing, and her ex-husband could lawfully cease spousal support payments.

Utah follows this traditional rule despite the declining popularity of long-term spousal support awards. If one spouse remarries or registers a domestic partnership in California, conventional alimony obligations terminate. A family law firm may review any applicable alimony orders and martial settlements to determine whether you may lawfully cease spousal support payments.

Types of Alimony Subject to Remarriage Termination Provisions

Utah permits divorcing partners to negotiate private spousal support agreements or request court-ordered alimony.

Judicial orders may provide for lump-sum awards, short-term support, or perpetual support payments. Short-term alimony helps lower-income spouses reestablish themselves in the workforce and usually expires via court order before the receiving spouse remarries. Likewise, lump support awards generally vest upon entry of the divorce decree.

Remarriage most often impacts long-term or perpetual alimony agreements and awards. Under Utah Family Code, spousal support payments automatically terminate upon the receiving party’s remarriage unless otherwise agreed to in writing. Remarriage, therefore, will override judicial alimony orders in Utah. A subsequent marriage also terminates spousal support obligations outlined in divorce settlements unless the contract expressly provides that the support continues after the receiving party’s remarriage. An attorney can review your divorce settlement agreement to determine whether you may lawfully cease paying spousal support in Utah.

Special Rules Applicable to Ending Spousal Maintenance Payments

Alimony atomically ends upon the receiving spouse’s lawful remarriage without any action necessary on the payer’s part. The law requires the receiving spouse to notify the obligor of the remarriage. Failure to do so requires the remarried spouse to refund all alimony payments made following the remarriage, minus arrears. The following special rules also apply to spousal support and related obligations following the receiver’s remarriage:
• The paying spouse must cover arrears even after remarriage
• Remarriage does not terminate associated child support payments
• The remarried spouse need not return any part of support payments made via real or personal property transfers
• Remarriage does not terminate other agreed upon spousal obligations in a court order or divorce settlement
• Cohabitation without remarriage or registered partnership does not automatically terminate alimony
• Unlawful remarriages, i.e., commitment ceremonies, do not automatically terminate support payments

Ex-spouses notified of a pending remarriage should always speak with a spousal support lawyer before ceasing alimony payments. Receiving spouses often hide their remarriage to avoid family conflict or recover additional payments. As such, obligors often receive information about the nuptials from their children, friends, or third parties. Continue paying alimony until you receive confirmation of a lawful remarriage from your ex-spouse or public database. You may recover overpayments, and potential sanctions, in court, but judges will not generally excuse missed payments based on secondary information.

Petitioning to Terminate Alimony Upon an Ex-Spouse’s Remarriage

Many couples live in marriage-like relationships without entering into a legal marriage or registered domestic partnership. Spousal support does not automatically terminate in such cases, but courts may consider modifying or terminating alimony based on these changed circumstances. Cohabitation in a marriage-like relationship often qualifies as a substantial change supporting court-order termination of spousal maintenance awards under Utah Family Law. During the pendency of spousal support terms, paying spouses may petition for an order to cease alimony payments or demand recalculation. Obligors typically request orders demanding their ex-spouses to show why the court should not terminate support due to changed economic circumstances. Obligors must generally include admissible evidence supporting their termination petitions, which may include the following:
• Affidavits (notarized statements) from friends or relatives about cohabitation or remarriage
• A marriage certificate
• Evidence of an ex-spouse’s changed address
• Social media posts indicating a wedding ceremony or cohabitation
• Text messages and emails from an ex-spouse

The court may order the ex-spouse to provide updated expense reports or reveal information about his/her finances and relationship. If the judge terminates or modifies alimony based on cohabitation, the obligor may request reimbursement for support paid after filing the modification/termination petition. The obligor might even request a refund if the ex-spouse hid a relationship or failed to report substantially changed circumstances to avoid reduced alimony.

Prohibition on Reviving Terminated Spousal Maintenance

In rare cases, the receiving spouse will innocently remarry only to discover she entered into an unlawful marriage.

She may also quickly regret her remarriage and lawfully petition for an annulment. Unlike divorce, annulments void the remarriage. Utah law also automatically terminates certain prohibited marriages. One spouse may cease support obligations following the receiving spouse’s remarriage in such cases but face post-annulment demands for continued support payments. Utah does not allow the receiving ex-spouse to revive spousal support following remarriage despite subsequent annulment or legal invalidity. If receiving spouses participate in marriage ceremonies, they waive future support obligations from their ex-spouses. The ex-spouses may freely rely upon the new marriage’s validity and cease alimony payments in most circumstances.

Does Cohabitation Impact Alimony?

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.

In this particular case, the ex-wife and her new partner spent every day together for over 2 years, spent holidays together, shared finances and meals regularly, and discussed marriage (but decided against it for financial reasons.) The court ruled to terminate the supporting spouse’s obligation for alimony, and a higher court agreed.

In those states that do not have laws or court decisions that specifically address the impact cohabitation might have on alimony, it’s difficult to predict how a judge will rule. Regardless of state law, if you and your ex-spouse have made an agreement that support or alimony won’t be affected by the person who receives it living together with someone new, your agreement will stand. And bear in mind that the person requesting a change in alimony or support payments is the one who must prove that an ex-spouse’s situation has changed significantly.

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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Do I Qualify For Alimony?

Do I Qualify For Alimony?

You might qualify for alimony. Let’s find out. Spousal support—also called “alimony” or “maintenance”—isn’t automatic and isn’t ordered in every divorce. On the other hand, it isn’t exactly rare either. If you’re planning to request alimony, or you think that your spouse might ask for it, you’ll want to understand what alimony is and how judges decide to award it before you divorce.

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.

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.

Not every former spouse receives alimony, which is also called spousal support or maintenance. Alimony will be awarded only when a former spouse is unable to meet their needs without financial assistance from a spouse who can afford to pay it. Spousal support may be temporary, such as when a former spouse needs time to get back into the job market, brush up on skills, complete an educational program, or raise the children; or permanent, such as when a spouse may never become self-supporting due to age or disability.

Your answers to the questions below can help you and your lawyer determine whether you’re a candidate for alimony (and if so, how much), or, conversely, whether your soon-to-be-ex spouse is, such that you will be liable for spousal support payments.

Length of Marriage and Alimony

If you are not sure whether alimony will come into play during your divorce, know that longer marriages usually involve this kind of spousal support, though some shorter marriages also warrant alimony. Your divorce lawyer should be able to let you know how likely it is that alimony will be involved in your case. Once it is decided that you will pay or receive spousal support, you may wonder how long it will continue. This varies from one case to another since it depends on the circumstances. Alimony is usually only paid until the recipient remarries or is cohabiting with a new partner. However, if the recipient never remarries, alimony usually has to be paid for the lifetime of the paying spouse.

Amount of Alimony

The amount of alimony depends on many factors. In most cases, the income of both spouses will be taken into consideration. If one spouse is making a lot more money than the other, he or she will likely have to pay alimony so that the two incomes are nearly equal. The bills of each person will usually also be considered, in addition to other factors of the case. If you are unsure if you will receive or need to pay alimony, realize that some couples are more likely to have to include spousal support than others. For example, if you have children, which required one spouse to stay home and care for them instead of going to school or working, the other spouse will likely need to pay both alimony and child support. Similarly, if one spouse cannot work much or at all due to a physical or mental health problem, the other spouse will probably have to pay alimony.

In general, alimony is usually determined after figuring out the earning capacity of each spouse. If one person is likely to make much more money than the other, alimony will probably be considered. This is especially the case if the marriage kept one spouse from making more money, perhaps due to frequent moves for the other spouse’s job, or other circumstances that caused a hardship. Whether you are worried about having to pay alimony, or hope to get it from your former spouse, you will likely need the help of a lawyer to get the results you desire. Otherwise, you might end up with less money than you can comfortably live on.

Types of Alimony

As most people know, alimony is a type of obligatory payment made following a divorce, based on the idea that married couples have a duty to support one another a duty which may not end with marriage. Alimony payments are made because a couple’s obligation to one another has been deemed to extend after the marriage itself ends.

Support payments are traditionally assessed by need; that is, which spouse has a lower earning potential and therefore is entitled to spousal support. However, what many people do not know is that there are actually several different types of alimony, which vary in a number of key areas. The four major types of arrangements are temporary, rehabilitative, permanent, and reimbursement. Many spousal support agreements combine multiple types of alimony when considering the sum total to be paid.

Permanent Alimony

Permanent alimony is perhaps the one most engrained in the public consciousness. This form of spousal support is usually paid to the spouse who is earning less money, and is paid until the death of the paying spouse, the death of the paid spouse, or the remarriage of the paid spouse. Usually, one spouse has to be earning a reasonable amount less than the other in order to warrant permanent alimony.

Temporary Alimony

Temporary alimony is not a short-term form of permanent alimony, but is rather paid while the divorce is pending and the couple is legally separated. This form of support is also called pendente lite, or “pending the suit.” Like in a permanent arrangement, temporary alimony is meant so that a spouse may maintain is or her lifestyle.

Rehabilitative Alimony

Unlike permanent alimony, rehabilitative alimony is issued for a relatively short period. It is meant to provide a spouse with the money he or she needs to acquire job training, experience, or education in order to become more self-sufficient. It is meant to help raise a former spouse’s income potential and thus decrease his or her need for spousal support. It is commonly given to mothers of small children so that they can stay home with the children until they reach school age.

Reimbursement Alimony

Reimbursement alimony is paid to reimburse a former spouse for an expense. For example, if you worked to help put your former spouse through college, you may be entitled to reimbursement alimony to repay you. This type of spousal support may be paid over time, or in a lump sum.

Reasons to Hire an Experienced Family Law Attorney

There are few areas of law were the day-to-day work of a lawyer has more impact than in a divorce case. Even if you are considering divorce mediation, working with a family law attorney can make a difference in your future.

If you are considering filing for divorce, it may feel overwhelming. Even if you understand the divorce process, there are many decisions to make. How do you agree on a workable child custody and visitation plan? How do you file court paperwork? It can take an emotional toll on you and your entire family.

That’s why hiring an experienced family law attorney is often in your best interest. This article explains the reasons to hire an experienced family law attorney when embarking on a divorce.

Experience Assessing Divorce Options

To grant a divorce, several issues must be settled:
• Division of property
• Spousal support
• Child custody and child support if there are children in the household

Experienced family law attorneys can give clients a good idea at the outset of their case on the best course of action. They have seen issues resolved in negotiation, mediation, and court. They will have a good idea of how best to ensure your goals are achieved.

Objectivity

As an outsider to your divorce, your attorney can be objective about your case. When emotions are running high, a client may be tempted to go for a quick resolution. They just want to get it over with. Your divorce lawyer knows you will live with this outcome for years to come. They want to ensure you make the best decision for the long term. For example, your attorney may counsel you to wait for a more fair and equitable division rather than accept a quick settlement agreement on property division.

Paperwork and Red Tape

As with any case that goes to court, a divorce case involves a lot of paperwork, process, and deadlines. An experienced attorney can work through the maze of paperwork so that you can get on with your life.

Experts and Consultants

When a divorcing couple has wealth, a family business, or extensive property, a family law attorney may bring in experts. This team of experts and consultants could include business valuators, forensic accountants, and QDRO experts. Accessing experts may add to the cost of a divorce, but they tend to work quickly. The information they provide can support arguments on the financial aspects of a divorce trial. They can also ensure a fair and equitable settlement agreement.

Alternative Dispute Resolution

An experienced family law attorney may advise you to try an alternative dispute resolution process. Using mediation or collaborative family law often saves time and money. It can also protect the positive working relationship between the couple. That may be important for parents who will be co-parenting in the future.

Experience Working with Other Lawyers

An experienced family law attorney can deal effectively with opposing counsel. From the early exchange of information (the “discovery” process), through settlement negotiations, to family court, lawyers speak the same language. Trust your attorney to be able to work effectively to resolve differences.

Favorable Settlement Agreements

Family law attorneys work hard to reach the best divorce settlement agreements for their clients as early in the divorce process as possible.

Family Court Experience

If a trial becomes necessary, an experienced family law lawyer can zealously represent you in court. They may be familiar with all of the family court judges who work in their area and how those judges have ruled on similar issues in the past. This can be useful when advising clients on how the court will view their case.

Hire an Experienced Family Law Attorney for Your Divorce Today

You don’t have to go through the process of divorce alone. Hiring an experienced divorce attorney can provide peace of mind. You will receive sound legal advice on each step of the divorce process. Expert guidance can help you achieve the best possible outcome for your case. Start the process today by contacting an experienced divorce attorney near you.

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 Settlement Agreements And Court Approval

Divorce Settlement Agreements And Court Approval

The divorce has been hard enough, and now there might be a trial? Trials may look good on television, but in most cases a settlement outside of court proceedings can be a better way to go. If you and your spouse can agree on the important issues in your divorce, you can avoid a trial. Here is a quick primer on how out-of-court settlement agreements in divorce cases get court approval.

Alternative Dispute Resolution in Divorces

The vast majority of divorce cases reach settlement before the case needs to go to trial — whether as a result of informal negotiations between the spouses (and their attorneys) or through alternative dispute resolution processes like mediation or collaborative law. Below is a discussion of settlement agreements and court approval in divorce cases.

The Divorce Settlement Agreement

If a divorcing couple (and their attorneys) negotiates and resolves all issues related to their divorce, whether informally or through out-of-court processes like mediation or collaborative law, the couple’s decisions are finalized in detail in a written settlement agreement. This agreement is then shown to a judge in the county/district branch of state court where the divorce petition was filed.

An informal hearing will usually follow, during which the judge will ask some basic factual questions, and whether each party understands and chose to voluntarily sign the agreement. As long as the judge is satisfied that the agreement was fairly negotiated, and the terms do not appear to blatantly favor one spouse over the other, the settlement agreement will almost always receive court approval.

Court Approval and Divorce Decree

Once the judge approves the divorcing couple’s settlement agreement, he or she gives the couple a divorce decree that shows that the divorce is final, and documents how key issues have been resolved. The decree dictates a number of things about the now-divorced couple’s rights and obligations, including:
Division of the couple’s marital property, debts, and resolution of other financial matters; Child custody, living arrangements, and a visitation schedule; and Child support and spousal support (alimony): who pays, who receives, how much, when, etc.

If the judge does not approve one or more terms of the settlement agreement, he or she will likely order the parties to continue negotiating on those terms. If the couple does not reach any settlement agreement, the divorce case will go to trial before a judge or jury.

Partial Divorce Settlement

A divorcing couple may reach settlement on a number of issues related to the divorce, but might find themselves unable to agree on other questions. If this happens, a partial settlement might be reached, and the remaining unresolved issues will be submitted to the court for resolution.

For example, if the couple has worked out a voluntary settlement on all issues related to their children (child custody rights, a visitation schedule, payment of support) but cannot agree on what to do with the family’s vacation home, the court might approve a partial settlement agreement on custody and support, but will order that the property issue be submitted for resolution at trial.

What If My Ex-Spouse Violates The Terms Of Our Marital Settlement Agreement?

If a party violates the terms of a stipulated judgment or marital settlement agreement, which are nearly always incorporated into a Judgment of Dissolution of Marriage, you have quite a few options to enforce the terms.
For example, you can file a contempt of court action against the other party. This is a motion that you file that states that there is a valid court order, the other party knew about the terms of the order, and the other party violated the terms. The court can put the violating party in jail or order them to pay a fine, among other things.

You can file a motion with the court seeking sanctions against the other party for violating the terms of the agreement. You can file a motion with the court seeking that the court compel the other party to cooperate. For example, suppose a party agreed to provide certain personal property to the other party but failed to actual follow through with that agreement. You can file a motion with the court requesting sanctions against that party and an order that compels that party to provide the property at a certain date.

If the other party refuses to sign documents required under the terms of a written agreement, you can file a motion and ask the court to appoint an “elisor” to sign the documents on behalf of that party. In that case, the court clerk actually signs the document and it becomes a valid and enforceable legal document. For example, suppose a party was ordered to execute an Inter-spousal Transfer Deed to transfer a property to the other spouse and they refuse to actually sign that document. You can file a motion for an elisor and the clerk will sign the deed on behalf of that party. In the event money is owed under a Marital Settlement Agreement, you can file a Writ of Execution with the court and seek to levy accounts or assets owed by the violating party.

How are Settlement Agreements Enforced?

In general, enforceability of settlement agreements vary among the different jurisdictions. One of the most common ways to enforce them in court is to file a motion. For example, according to the Utah law entering into a settlement agreement requires that the agreement must be either in writing, signed by all the parties outside the court or may take the form of an oral agreement made in the presence of the court. The court must have jurisdiction over all the parties until the settlement has been fully performed, meaning granting the court the ability to enforce the settlement’s terms. However, if one of the parties fails to follow through with the settlement agreement, the aggrieved party may file a motion in court to enforce the agreement. Generally, the motions requests the court to enter a judgement pursuant to the settlement’s terms. The role of the judge hearing the motion is to examine the evidence and hear oral testimony. Additionally, the judge may also consider the factual disputes regarding the settlement. If the judge finds that the settlement is sound in its terms, it may then enter a judgment pursuant to those terms.

Furthermore, for the settlement agreement to be legally enforceable certain requirements must be met. Some of these requirements include:
• Drafting of the agreement by a qualified attorney;
• Appointing the legal advisor in the agreement;
• Formally having the agreement in writing and;
• Specifying which claims if any are being waived.

Can a Settlement Agreement be Cancelled?

It is possible to back out of a settlement agreement if both parties consent and it has not been incorporated into a court order. However, the issue arises if the other party does not agree. Usually, courts are reluctant to allow a party to back out of a settlement agreement if it is made in good faith with the parties’ involvement. The settlement agreement can be voided if it was formed through fraud or misrepresentation.

If a person can refuse to sign a settlement agreement in the first place depends on how it was formed. If there was an oral agreement a signature may not be required for it to be enforced. Researching the local jurisdiction will allow a better understanding of how the court would rule on an oral agreement between the parties. The court can hold a hearing to determine if there was a meeting of the minds and good faith agreement for the settlement. If so, it is unlikely for either party to back out of the agreement. Cancelling a settlement agreement is a complex matter and may require the assistance of an attorney. A qualified attorney can review the settlement agreement and determine what the options are under contract laws. They can also provide advice and input regarding alternative options.

Can a Settlement Agreement be Modified?

Furthermore, the settlement agreement can be modified, if there can be a showing by the party that there has been a significant change of circumstances. If this occurs, the party can seek modification from the court for the settlement agreement. Below are some situations in which modification may be permissible:
The obligations placed on the parties later become impermissible under federal law;
Statutory or decisional law has been altered in a way that makes legal what the decree was designed to prevent and; The parties entered into the decree under the mistaken belief certain conduct was constitutionally mandated.

The proper motion needs to be filed for a modification in the settlement agreement. The party seeking modification has the burden of showing that a significant has occurred for the modification of the settlement agreement. A reasonable basis for the change is sufficient to show for the modification request for the court.

However, simply inconvenience in following the terms of the agreement does not suffice as a valid reason to modify the contract. There is no requirement for the part to show that the changed circumstances were either foreseeable or unforeseeable. The rules regarding the exact requirements will vary among the different jurisdictions and what the process is like to request a change in the settlement agreement.

Therefore, the court may consider several factors for the modification of the settlement agreement. For example, they may look to the events leading to the settlement agreement, what the specific hardship is, and the interests of the other party not wanting to modify the agreement.

What To Do If There’s a Breach of Settlement Agreement?

After the parties resolve their disputes and come to an agreement, they can stipulate in those agreements terms that would outline the course of action in case a breach occurred. A breach is when either party refuses to adhere to the agreed terms and conditions outlined in the settlement contract. In brief, a party that breaches a settlement agreement will risk being forced to complete the agreement and paying the legal costs of the party seeking to enforce the agreement.

The process to obtain breach of settlement agreement damages can vary depending on the different states. A separate lawsuit may need to be filed in order to obtain the damages from the breach of the settlement agreement. Typically, the settlement agreement will stipulate the course of action, penalties or fees that need to be paid if either party fails to follow its legal obligations under the agreement.

A majority of the cases are settled out of court. There is a possibility to obtain an out of court settlement. There is the uncertainty of what will occur at trial, costs of court, and lengthy proceedings. One of the advantages of settling out of court is that the parties are in control of their privacy and do not have to share information regarding the settlement with the public, including the terms of settlement.

Do I Need a Lawyer for Assistance with a Settlement Agreement?

The process of drafting a settlement agreement can be time consuming and draining. It is recommended to seek out an attorney that can closely examine the nuisances in your local jurisdictions to determine the best possible outcome for the legal dispute. A settlement agreement needs to be carefully crafted to balance the risks and provide a workable platform for both parties to abide by. It is important to include terms that are both mutually favored by both parties and draft a document that can end future litigation. A settlement agreement is a crucial document in ensuring that the parties come to terms with their disputes.

Steps To A Divorce Settlement Agreement

STEP 1. Beginning with the Basics

First, you must acquire the required legal forms from your courthouse’s regulation collection or from your state’s or district’s government court or justice site. Similar to any legal contract, you should start by specifying the full the names of the parties who are associated with the agreement. In this case, it will certainly be you as well as your spouse.

STEP 2. Include the Details

Provide all relevant information about your marriage, consisting of:
• The Date On Which You Got Married,
• The Date Of Your Separation,
• Names And Also Ages Of Any Type Of Small Children Of The Marriage,
• The Grounds for your divorce
• Your current living arrangements and address ( es). This can indicate that one of you has moved out of the family residence, or that you’re presently living “separate and apart” in the family house, as well as the existing situation and location of your kids or other possessions that you want to name.

STEP 3.Verify Your Agreement

You and your spouse should verify that both of you accept the terms of the agreement included into this document (that your divorce will certainly be uncontested); this acceptance as well as your seen signatures will certainly make the agreement legitimately binding.

STEP 4. Identify and Divide Assets and Debts

Laws regulating division of assets in divorce vary from one state to another. Some pairs have the ability to settle on how to separate every little thing, while others look for the aid of divorce attorneys to help them to negotiate a settlement that benefits both partners. While dividing the assets, keep in mind your joint debts as well – bank loans, credit-card debts, mortgages, car payments, etc. Unless you agree otherwise, both of you are on the hook to repay your joint financial debts. Some will be personal– debts sustained prior to the marriage such as a student loan, a bank card that just one spouse used as well as was approved for, etc. If the debt is in one partner’s name only, that spouse will usually assume the responsibility for repaying it.

STEP 5. Create Parenting Plan For Custody And Visitation

The following step is to discuss the matters concerning your children, if you have any. You should make a decision what type of custody is right for your situation – joint, shared or sole one. When choosing the primary custodial parent, don’t hesitate to contact a Child Custody Lawyer. In case the children stay with one parent, any type of visitation rights of a non-custodial parent should be determined in the agreement. Include as many details as you can — such as days of the week, time visitation starts and stops, and what occurs throughout the vacations– to decrease the risk of troubles down the line.

STEP 6. Agree on Child Support and Alimony

Finally, child support and alimony should be reviewed. . At a basic level, the Child Support Worksheet requires both parents to enter in their financial information to calculate a reasonable amount of child support. This reasonable amount of child support may be altered upward or downward.

STEP 7. Polishing Your Agreement

When you’ve finished all the documents, it’s time to read it over carefully to look for errors or omissions. Make certain that it’s perfect for any person who’s going to read it. If your agreement contains mistakes or typos, not only can this harm the reputation of your case but can additionally develop opportunities for misconceptions.

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

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Changing Your Name After Divorce

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Changing Your Name After Divorce

There are a number of different things you can do to make it easier for you to change your last name after a divorce. First of all, if the divorce is not yet final, you can request it in the divorce decree. If you have already been divorced for a while, it may not be too late. You may not need an attorney to assist you with changing your name. Contacting the circuit court in the county or city where you live may be your first step. Make copies of all legal name change documents and keep these stored in a safe place since you will need them to update your other materials. From this point on, you’ll want to update the same documents you did when you got married. To make things easier, ensure that you address yourself a certain way and introduce yourself that way to others, too.

Some may ask for a request for the name change order, such as your bank. Making a list of everyone that you should contact with the update of your name change can make this process easier. This includes employers, creditors, financial institutions, the social security administration, the doctors’ offices, the Department of Motor Vehicles, the passport office, IRS/state tax departments, voter’s registration, insurance providers, your landlord or mortgage holder, utility companies, and family and friends. Your will and all other legal documents should also be updated at this time to reflect the new changes in your life and your fresh start.

Keeping Your Name

If you are going to keep your married name, you need to say so in the divorce decree.

There will be a question that asks if you would like to retain your married name, or be known by your maiden (or former) name. Your husband cannot request your drop his name, regardless of the reason.

It is your legal right to keep your married name, even after your husband has moved on. So if you are asking, “Can I keep my married name when divorced;” yes, you can!

Changing Your Name: The Dos and Don’ts

Changing your name, by marriage, civil partnership, deed poll or after divorce – can be expensive and onerous. Here’s how to avoid the pitfalls and keep costs down:

Changing Your Name after Marriage Or A Civil Partnership

Your marriage or civil partnership certificate does not in any way indicate the surname you’ll have after the ceremony, yet you can use it to prove you have changed your name. To change your surname to your spouse or civil partner’s surname (or to double-barrel your joint surnames) on your passport or driving license you need to fill in the relevant forms requesting the change and present your marriage certificate.

Financial institutions, such as banks and building societies – should also accept your marriage certificate as proof you have taken your partner’s surname if you are a married woman or civil partner. This is not always the case if you are a married man taking your wife’s surname or if you are double-barreling or meshing your surnames. If one of these situations applies to you, you may prefer to change your name by deed poll (which should always be acceptable proof).

Changing Your Name By Deed Poll

A “change of name deed poll” is simply a document that contains the following three declarations:
• I am abandoning my previous name.
• I will use my new name at all times.
• I require all persons to address me by my new name only.

You must sign and date this declaration in both your old and your new name. Your new name must contain both a forename and a surname and be pronounceable, as well complying with other common sense restrictions specified by the Home Office. Two witnesses, who aren’t related to you, must also sign your deed poll and give their name, occupations and addresses.

How Do To Change Your Surname After A Divorce

You have the right to assume whichever name you wish at any point. However, from a legal perspective, when applying for formal documents such as a passport or driving license, or when opening a new bank account, then simply choosing to be known by a different name will not prove sufficient. A formal change of name application must be submitted to. This may sound like an overwhelming proposition, but in truth the process is very straightforward and inexpensive.

But that is not intended to make the process seem any less important. The fact is that it is essential to inform companies and authorities of your new status – it’s one of the many ways in which you might have an extra layer to protect your credit rating. Naturally, not all people wanting to change their surname back to their maiden name are doing so through fear- many divorces are more than amicable, but when the relationship comes to an end, the sharing of an ex-husband’s surname may simply not be desirable. His or her credit rating could impact on yours particularly if you remain at the same address where you lived as a married couple.

Is There Another Way To Change My Surname Back After A Divorce?

Despite the processes laid out above as being fairly straightforward, there are still a number of people going through a divorce that would prefer not to have to wait on yet another decision from the courts. Naturally, many people will simply revert to their maiden name after the divorce, but those people need to be aware that there are an increasing number of institutions who will require legal documentation to support an application.

The good news is that if you are simply reverting to your maiden name after a divorce, then many institutions will accept a copy of your birth certificate, marriage certificate, decree absolute and a signed declaration that you are reverting your maiden name for all purposes. In the case of civil partnerships, both that certificate along with the final order will be required.

To be clear on this point, the marriage certificate which you are likely to have stored for sentimental purposes is not what you need here. Whilst many people will hold onto their marriage certificates in a safe place, such things can be lost, but that is not a problem. Your more formal marriage certificate is not the sort of document that you are likely to have had framed but the good news is that you can order copies of the certificate Be aware however, that banks, building societies and the Passport Office are constantly imposing new and more stringent security measures, and so it makes sense to not allow something as important as your surname stand in the way of an otherwise straightforward process. An enrolled Deed Poll is your guarantee that you will be able to comfortably change your name back to your maiden name after a divorce, and that you’ll be able to apply for anything from a bank account to a passport without constantly having to dig out an array of certificates that are resting comfortably in the back of a filing cabinet somewhere in your, or your ex spouse’s home.

Can I Change My Surname Back To My Maiden Name Before My Divorce Is Finalised?

The simple answer here is yes. You can enroll for a Deed of Change of Name at any time – your divorce is not a consideration for the Deed Poll Office. However, it is vitally important that you advise all parties – especially your divorce lawyer – that you are doing this. Failure to do so could result in a decree nisi and decree absolute being granted to someone who, from a legal perspective, no longer exists due to a change of name that’s been recognized by the courts, and that could prove to be a very costly mistake!

Do I Have To Revert To My Maiden Name After My Divorce?

There can be any number of reasons why you would not want to revert to your maiden name after a divorce, and the simple answer is that you don’t have to. However, in this instance, it will be necessary to apply for a Deed Change of Name, as the presentation of a marriage certificate and decree absolute will not prove sufficient here.
As we mentioned above, it’s not necessary to wait until a divorce is finalized to apply for a Deed Change of Name, but it is vitally important that all parties involved in your divorce proceedings are notified of your new name, once it has been granted. Indeed, many applicants have the foresight to notify their divorce lawyer at the point at which they’ve applied to change their name.

Naturally, your divorce lawyer is on hand to take you through all of these issues and advise you on the best course of action to change your surname back to your maiden name after a divorce, or to change your name to something entirely different after a divorce as well.

Reverting To Maiden Name

Reverting to a maiden name is common for many women after divorce. But requesting to change your name and actually getting it done can bring up a lot of questions about the process.

Can I make the name change part of the divorce decree? How soon in the divorce process can I change my name? Who do I need to talk to when I’m reverting to maiden name? Find answers from the legal expert to these and other questions below.

Name Changing Cautions

Whatever reason you have for keeping your married name, remember that is your legal right. You should think hard about changing back to your maiden name, because once you are legally divorced, and you change your name by Deed Poll, it will be nearly impossible to change your name back. The main reason being you will no longer have a marriage certificate, but instead a divorce decree.

Pros and Cons of Keeping Your Married Name After Divorce

After your divorce is finalized, you may be considering all of the changes you’ll need to make in your life. In addition to updating your beneficiary forms and your legal paperwork, such as a power of attorney and driver’s license, you might wish to consider changing your married name. This might seem like an additional hassle, after all of the paperwork and other expenses you’ve had to go through due to ending your marriage. But there are pros and cons when it comes to changing your married name. It is not as difficult or as unusual to change your name as you might think. More women are deciding not to keep their ex-husband’s last name after the divorce.

Ask Yourself If You Should Go Back to Your Maiden Name

Ask yourself the honest question of whether or not you want to back to your maiden name. Many women who have gotten divorced choose to do this and this is fine. However, many women realize that they don’t want to reset their entire social life. Others may feel that changing your name after a divorce is a bigger part of an overall fresh start.

Consider the Benefits of a Clean Break

One of the biggest advantages of updating your name after a divorce is that you can establish a firm break with your former spouse. Just as taking his name when you got married was a signal that you were one unit, legally updating your name back symbolizes that you no longer wish to be connected legally, emotionally, or financially with your ex. It also symbolizes your independence and the fact that the marriage is completely over. There can be something empowering and cathartic about choosing a new name or going back to your maiden name.

Does Your Maiden Name Truly Reflect Who You Are?

Whether you categorize it coming into your own, aging gracefully, or closing this chapter of your life, coming out on the other side of any divorce can be a good time to be proud the new woman that you’ve become. Chances are that you’ll find that you are not the person that you were during the marriage. Just like you could benefit from an upgrade in your wardrobe and a new living situation, you might find that changing your legal name is an opportunity for an emotional makeover.

Con: Causing Confusion in Your Professional Life

A name change can be confusing, which is one reason why more women are thinking about keeping their married name even after the divorce is final. A name change can be especially confusing if you are a lawyer or a doctor with clients or patients who are used to referring to you by the married name. If you are a professional speaker or an actor or have a big network, it can be very problematic to change your name. If you consider that your last name is part of your brand, switching it may not be recommended idea.

Consider Your Children

Many formerly married women have changed back to their maiden name and allowed their children to keep the last name of the former partner. If you have small children, it may be easier to keep the ex-husband’s name so that you and the children can have the same last name. With a rising number of blended families, however, this is often less of an issue.

Fear-Based Reactions

Many of the reasons that a woman may choose to not change her name could be based on fear. If you are afraid that it would be too costly or complicated, you might be surprised to realize that it can be less expensive or as much of a hassle as it was to change your name when you originally got married. If you are concerned about offending your parents, consider talking over the situation with them after you have come to your own decision. Many women are also afraid of change, or afraid that it is unfair to the children.

If you reset your life after a breakup, it can already feel that you’ve gone through a tremendous amount of change. Changing your last name might seem like one more thing you don’t want to do. You don’t have to keep the same last name as your children if you don’t believe that this will affect them in any way.

Can I Keep My Married Name When Divorced?

Each year marriages end in divorce for various reasons. Despite the reason for the divorce, there are many questions the ex-spouses may have. Some women ask, “Can I keep my married name when divorced?” Typically a woman will change her name back to her maiden name, but in some cases a woman may want to keep her married name. There a list of reasons why a woman may want to keep her married name.

Some of those reasons include:
• A woman does not want to go through the hassle of a name change.
• The marriage lasted for decades, and the woman is predominantly known by her married name.
• A women wants to keep the same surname as her children.
• The name is prestigious, and you want to hold on to that.
• For business purposes, such as a pre-established company name.
• Emotional ties. For example, a woman has come into her own since being married.
• Sometimes women cannot let go of their former lives, especially if the woman was not the party who wanted the divorce.

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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Can Men Get Alimony?

Can Men Get Alimony?

Spousal support is a court-ordered payment from one former spouse to the other. The award of spousal support does not depend on gender. Rather it depends on whether one spouse is less financially stable because the other spouse has been the primary earner in the family. Whether a person can get spousal support, or alimony, depends entirely on the state in which the person lives. Some states have what is called “spousal maintenance”, but that is generally based on the same principle as spousal support or alimony. As the number of stay-at-home fathers rises and women become primary breadwinners, men are increasingly awarded spousal support.

States vary, but in a divorce judges typically consider the following when determining whether a spouse is eligible for spousal support:
• The length of the marriage;
• The earning potential of each spouse and whether each can keep the same general standard of living as when married;
• The age of the spouses;
• The length of time that a dependent spouse would need to prepare for employment;
• The educational background of each spouser,
• Whether any spouse is disabled and how it affects their earning capacity.
• Whether one spouse stayed at home with the children while the other’s career advanced;
• Whether one spouse sacrificed his or her own education and career opportunities to advance the other spouse’s career.
• Whether the spouse who must pay can support their ex-spouse and still support themselves.

The above list is not exhaustive. Spousal support is awarded on a case-by-case basis. Whether one spouse gets an award of spousal support depends entirely on the facts involved. Usually an award of spousal support is not unlimited. The court may determine a length of time for the spouse who gets the support to get an education and become self-supporting. Usually spousal support ends if the spouse receiving it remarries. Or, it may end if the paying spouse dies, but not necessarily. If a spouse who receives spousal support is not able to become self-sufficient because of age or disability, support may continue from the estate or life insurance proceeds of the paying spouse. The continuation of spousal support may be addressed in the will of the paying spouse.

How Do You Get Spousal Support?

There are a few ways to get spousal support in the event of a divorce. The parties to the marriage can agree upon the award of spousal support before they get married in a prenuptial agreement. In this case, the prenuptial agreement is like a contract that the parties can enforce in court. Another way is for the divorcing parties to agree to an award of spousal support as part of a settlement agreement. Generally speaking, if an agreement is made, the parties can agree for one to receive spousal support on any terms they wish. Most of the time, however, the parties are not able to agree on the subject of spousal support, and in that case the decision will come directly from the judge presiding over the divorce case.

Do Men Face a Gender Bias?

The award of spousal support in divorce cases is based on such factors as those listed above and not on gender. A court’s analysis should be gender-blind; it involves weighing the factors without regard to the gender of the parties.

The primary reason women receive spousal support more often than men is because women have traditionally been the spouses who stay at home to raise the children. Or they may also provide non-financial support that makes it possible for the husband to devote the majority of his time to advancing his career. If the roles are reversed and the male spouse has stayed home to care for the children or otherwise limited his career advancement in order to support his wife’s career, then the male spouse may be awarded spousal support.

If I Have Custody of My Children, do I Automatically Get Spousal Support?

Spousal support is not awarded on the basis of custody of the children. Spousal support is not automatically awarded to one spouse because that spouse has sole custody or primary custody. Spousal support is based entirely on the relative needs of the spouses and not on the terms of custody of the children. Child support is for the children and given to the spouse who has sole or primary custody. Spousal support is specifically for the spouse only.

Understanding and Calculating Alimony in Utah

It’s no surprise that for most couples, a divorce can cause financial instability. To protect under- or unemployed spouses, the court may award alimony, which is a court-ordered payment from a higher-earning spouse to the other during the divorce process and often, for a period after.

Qualifying for Alimony in Utah

Alimony is gender-neutral in Utah, meaning either spouse can request support during the divorce process. When considering a request for alimony, the judge will evaluate the following factors to determine the type, amount, and duration of support:
• the financial condition and needs of the supported spouse
• the recipient’s earning capacity or ability to produce income, including an evaluation of whether the recipient lost work experience or skills while caring for the couple’s children
• the paying spouse’s ability to pay support while maintaining financial independence
• the length of the marriage
• whether the recipient is a custodial parent of a child who requires child support
• whether the recipient worked in a business owned or operated by the paying spouse, and
• whether the recipient directly contributed to the increase in the paying spouse’s income by paying for education or job training during the marriage.

In addition to the above factors, the court can also consider a spouse’s fault (or marital misconduct) which caused the breakup of the marriage. In Utah, “fault” may include adultery, physical abuse or threats to the other spouse or children, or undermining the financial stability of the other spouse. It’s important to understand that the court can’t use alimony to punish a misbehaving spouse, so judges use fault in limited circumstances.

Unlike child support in Utah, there is no formula for judges to use to calculate alimony in a divorce. Instead, judges’ base support amounts on the above factors and any other relevant circumstances in each case. If you and your spouse would like to maintain control over the alimony order, you can negotiate the terms in a settlement agreement and present it to the judge for approval.

The Marital Standard of Living

The purpose of alimony is for both spouses to maintain a lifestyle as close as possible to the marital standard of living. However, as a general rule in alimony evaluations, judges will look to the standard of living existing at the time of the couple’s separation. In other words, if you lived a lavish lifestyle for the first 5 years of your marriage but downsized and lived on a budget for the last 5, the court will use alimony to ensure you can maintain your current budget and lifestyle.

Duration of Alimony

Sometimes judges will award temporary alimony while the divorce is pending. Orders of temporary support terminate when the judge finalizes the divorce. For all other alimony orders, the law prohibits the judge from ordering support for longer than the length of the marriage unless the court reviews the order before the termination date and finds extenuating circumstances that require support to continue.

Terminating Alimony in Utah

Typically, the judge will set an end date for alimony in the original order. However, if the supported spouse remarries or dies, alimony terminates automatically. It’s no surprise that life goes on after a divorce. But, if the supported spouse begins cohabiting (living with) a new partner, the paying spouse can request termination of alimony.

Cohabitation may terminate alimony, but only if you report it to the court and ask for support to end within one year of discovering the cohabitation.

Paying Alimony in Utah

Most alimony payments in Utah are periodic (monthly) and due on the first of every month unless the court orders otherwise. Most judges include an income withholding order for alimony, which directs the paying spouse’s employer to withhold the payments from the employee’s paycheck and forward it directly to the court. If the paying spouse doesn’t have a steady job or is self-employed, the court may order lump-sum payments or payment through property transfer. Lump-sum payments are installments, either one or several over a short period of time. Once you make the final payment, your alimony obligation to your spouse ends.

Property transfers are rare, but helpful in cases where one spouse doesn’t have a steady income but has a significant amount of property that will fulfill the support order.

Modifying Alimony Orders

Unless the support order is non-modifiable, either spouse can request a review and modification (change) of an alimony award if there is a substantial and material change in circumstances after the divorce. For example, if a paying spouse is disabled due to an unforeseen health issue and can’t work, the court may adjust or terminate alimony to ensure that both spouses remain financially stable. If there’s a change in circumstances that makes it difficult for you to pay support, it is important to request a review as soon as possible, and in the meantime, you must continue to pay. Failure to pay support can result in serious consequences, such as contempt hearings, fines, bank seizures, and in the most severe cases, a jail sentence. If your spouse isn’t paying support as ordered, you can file a formal petition with the court asking for help enforcing the order.

Taxes and Alimony

If you finalized your divorce on or before December 31, 2020, you can deduct your alimony payments, and your spouse must report and pay taxes on the income. However, for divorces on or after January 1, 2021, changes to the tax law eliminate both the tax deduction benefit and reporting requirements for alimony.

Divorcing couples should consider the tax ramifications for both spouses before finalizing the divorce. If you’re unsure how the new tax law impacts your bottom line, you should speak to an experienced tax and divorce attorney near you. If your marriage ended with you or your spouse slamming the door, and you earn more than your spouse, you will most likely be ordered to pay your spouse alimony in case of a divorce.

How Does Alimony Work In Utah?

If you want to avoid paying alimony, also known as spousal support, but it’s clear from your circumstances that you will be ordered to pay alimony, then there’s most likely no legally and equitably valid ways you can prevent having to pay alimony. That is because Utah laws are very strict when it comes to ordering alimony when one of the spouses has the ability to support himself or herself financially month to month and has some surplus money to share with his/her spouse. That, of course, if the other spouse can prove that he or she is unable to support himself/herself financially month to month. Despite this, payor spouses (the spouses ordered to pay alimony) still look for legal ways to avoid paying spousal support. And more often than not, their attempts to avoid being ordered to pay alimony to come up empty. This is especially true if the spouse by an experienced alimony attorney in Salt Lake City or elsewhere in Utah.

Illegal And Legal Ways To Avoid Paying Alimony In Utah

More likely than not, a spouse may attempt to either falsely appear impoverished or even voluntarily impoverish himself or herself (by voluntarily quitting their job shortly before or after divorce) in order to avoid paying alimony. But such attempts to avoid paying spousal support are illegal in Utah and will not get you far.

Still, there might be legal options available to avoid having to pay alimony to your spouse in Utah:
• The financial condition and needs of your spouse do not meet the required threshold under Utah law;
• Your spouse’s earning capacity allows him or her to earn a living and produce income on their own;
• Your spouse’s work is not affected by her or his need to care for your children;
• You do not have the ability to provide alimony (there is no surplus money in your month to month income);
• You were not married for very long;
• Your spouse does not have custody of the child requiring support;
• Your marriage ended because of your spouse’s fault (having an affair with or engaging in a sexual relationship with another person, knowingly and intentionally causing, threatening, or attempting to cause physical harm to the other party or your child, substantially undermining the financial stability of you or your family during the marriage); or
• Your spouse is cohabiting with another person, who has the ability to satisfy your spouse’s financial needs.
If you are thinking of getting a divorce or in the process of getting a divorce and believe that you should get spousal support, you should definitely consult an experienced Utah family law attorney.

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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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