Can I Get Alimony While Still Married?

Understanding Alimony
Can I Get Alimony While Still Married?

Before filing for divorce, learn all about alimony (or spousal support): what it is, how it works, and how it’s enforced.

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.

What Is Alimony?

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

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

How Does Alimony Work?

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

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

In general, lump-sum alimony awards and alimony in the form of a property transfer are non-modifiable, meaning they can’t be changed later and can’t be terminated or undone.

Periodic alimony payments may be changed when there’s a significant change in one or both of the spouses’ circumstances.

Periodic alimony awards are the most common and require one spouse to pay a certain amount to the other (the “supported” or “dependent” spouse) each month. A periodic or monthly alimony award will end on a date set by the judge, or when one of the following events occurs:
• The supported spouse remarries
• The supported spouse moves in with another person
• Either spouse dies, or
• A significant event (like a paying spouse’s retirement or a supported spouse’s new high-paying job) happens and a judge determines that alimony is no longer necessary.

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

Negotiating Alimony and Other Terms of Your Divorce

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

It’s often worth the effort to try to resolve your divorce issues on your own: When you’re able to settle, you can save on attorneys’ fees and reach a faster resolution by DIY’ing your own divorce.

If you can’t agree, you’ll need to file a formal motion (request) asking a court to decide alimony. The court will schedule a hearing where both sides will be able to present their positions regarding alimony. After considering the arguments and evidence presented at the hearing, the judge will issue an order.

One of the downsides of asking the court to decide is that if you’re represented by an attorney, the expense of going through a hearing can be significant. Even if you’re not represented by an attorney, you will have to spend a lot of time gathering evidence (such as financial documents) and preparing for the hearing.

How Courts Decide Alimony

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

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

Both spouses might have to make some life and work changes after divorce. For example, a judge might require a spouse who has a part-time job that doesn’t pay well to try to find full-time employment in a higher-paying field. Sometimes, a judge will order (or the paying spouse might request) that an expert called a “vocational evaluator” make a report to the judge on the job prospects for a spouse who hasn’t been fully employed for a while.

The evaluator will administer vocational tests and then compare the spouse’s qualifications with potential employers or open job positions in the area to estimate how much income the spouse could earn.

Can I Get Alimony While The Divorce Is Pending?

Divorce is usually an unsettling time for most people. Many of these feelings come from the uncertainty over what the future will bring, especially about money. It’s not uncommon for a lower-earning spouse to receive inadequate financial support in the early phases of separation. Alimony is designed to keep the lower-earning spouse at a standard of living similar to when they were married.

Are you struggling to make ends meet while the divorce in progress? Did your spouse not leave you with enough money to get by? In Utah, you can get temporary alimony at the beginning of the divorce process without having to wait for the final judgment. There are also other options for filing for spousal support without the need to file a divorce complaint.

You can file for spousal support even if a divorce isn’t pending. If you are a victim of domestic violence you can seek spousal support or partner support when you file for a restraining order. You can also seek spousal support if you are filing for a legal separation. To get spousal support or partner support you must be married or in a domestic partnership.

How Do I File For Support If A Divorce Is Pending?

You can request temporary alimony while you are waiting for the conclusion of your divorce matter. The spouse seeking the temporary alimony requests a hearing. At that hearing, a judge will calculate what alimony award, if any, should be given. Spousal support is referred to as either temporary alimony or permanent alimony. Temporary alimony is support paid by the higher-earning spouse to the lower-earning spouse during the divorce process.

Permanent alimony is support paid after the conclusion of the divorce.

Importantly, “permanent alimony” does not necessarily mean life-long alimony. Permanent alimony typically has an end date that is related to the duration of the marriage and other factors It is important to speak to an experienced attorney to who can clarify the complex issues that go into this determination.

Does The Court Discriminate Based On Gender When Ordering Spousal Support?

The family law judges in Utah are not allowed to discriminate based on gender for any issue involved in a divorce or legal separation case, including when spousal support is at issue. The United States federal law as well as Utah law ensures that biases regarding gender is to be avoided.

Can I Obtain Spousal Support On An Emergency Basis?

We often see cases where spouses separate from one another and the employed spouse “cuts off” the unemployed spouse from access to any community funds or income. These circumstances present an immediate need to file papers in court. In Utah, the procedure to address this problem usually involves the prompt filing of a divorce case along with a Request for Order for temporary alimony. A Request for Order is a “motion” where the person asks the court to make some type of temporary order, in this case for alimony, and a hearing date is set. Additionally, we often file an “ex parte application” to ask the court to grant an expedited hearing date so that the person in dire need of spousal support doesn’t have to wait a month or two for a hearing date. As you might suspect, the court generally does not appreciate it when one spouse completely cuts off the other spouse from having money to live and pay bills.

What Happens When A Support Recipient Remarries?

There are several “automatic” ways spousal support ends under Utah law. First, if a support obligor or recipient dies, spousal support will terminate. Second, if a specific date is reached for which the parties agreed or the court ordered spousal support to end. Third, when the recipient of spousal support remarries, spousal support will no longer be payable to that spouse unless the parties specifically agreed in their divorce Marital Settlement Agreement that spousal support would continue to be paid even upon remarriage.

Termination or Modification of Alimony in Utah

When a supported spouse gets remarried, alimony typically ends. However, if a supported spouse is simply living with someone else or has an increase in income, the paying spouse needs to file a motion to modify support and ask a court order to lower or end alimony payments.

If you’re paying alimony and your ex-spouse is living with someone else or has increased income, you should ask your ex-spouse to agree to lower or end alimony. You can sign a formal agreement and file it with your divorce court to modify or terminate alimony.

If your ex-spouse disagrees, you should file a motion to modify or terminate alimony with the court that granted your divorce. You’ll need to state how circumstances have changed and why that warrants a modification or termination of alimony.

For example, your spouse’s increase in income, your spouse’s lowered needs, or your spouse’s living with another person in a romantic relationship may all qualify as a “change in circumstances” that the court can use to lower or end your support payments.

Impact of Cohabitation on Alimony

Under Utah law, there is a rebuttable presumption that alimony can be reduced, and possibly terminated when the supported spouse is cohabiting with someone else The rebuttable presumption means that the court will presume that a reduction or termination of alimony is appropriate unless the supported spouse can prove a continuing need for alimony payments despite living with someone else.

As with remarriage, you and your spouse can agree in your divorce settlement agreement to continue spousal support if the supported spouse remarries. If you don’t have a written agreement, and the supported spouse will not agree to lower or end alimony, you can file a motion asking the court to modify support. The court won’t directly consider the income of the person with whom the supported spouse is living when deciding whether to lower or end alimony, only the supported spouse’s new financial circumstances.

Cohabitation is more than a roommate relationship—it usually requires a personal, romantic relationship. However, if the supported spouse is living in a roommate situation, the court may still find the need for support has decreased and may modify alimony.

The Ten-Year Rule For Spousal Support

The length of your marriage is an essential factor in how long spousal support payments continue. Generally, if a couple is married less than ten years, the duration of spousal support payments is one-half of the duration of the marriage. Therefore, if you were married for eight years, you will pay spousal support for four years.

However, the judge has discretion to order a longer or shorter duration for the payments.

Couples who are married for more than ten years are considered to have a long-term marriage. In these cases, judges are not permitted to set an end date for support payments. Therefore, other factors determine when spousal support payments end.

Marital Agreements and Spousal Support

Prenuptial agreements and post-nuptial agreements may set the amount and duration of spousal support payments. If the marital agreement is valid, the court should uphold the terms of the agreement.

For example, let’s assume a couple is in a long-term marriage. However, the marital agreement calls for short-term or lump sum alimony. Therefore, the court should enforce the agreement, even though the spouse could have received permanent alimony payments if they did not enter the marital agreement.

Negotiating Spousal Support Payments

A couple may come to an agreement as to the duration and amount of spousal support payments. In these cases, the spouses agree to the terms for alimony payments. The couple may use a mediator or family law facilitator to help negotiate spousal support payments.

Litigating Spousal Support

If a couple has no marital agreement and cannot agree to the terms of spousal support, the court will decide the terms. As stated above, the length of the marriage is a significant factor in how long spousal support payments last in Utah. Temporary spousal support is often calculated based on a formula. You can read about the formula by accessing the Family Court Rules for the county where your case is filed.

Other factors the court considers when deciding a spousal support case include:
• The age and health of each spouse
• The needs of each person based on the standard of living they enjoyed during the marriage
• Whether there are allegations of domestic violence
• The individual and joint property and debts of the couple

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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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