What Types Of Spousal Support Am I Eligible For?

What Types Of Spousal Support Am I Eligible For?

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

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

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

Temporary Support While the Divorce Is Pending

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

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

Short-Term and Rehabilitative Support

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

Long-Term or Permanent Support

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

Reimbursement Support

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

Financially Disadvantaged Spousal Support

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

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

Needs Based Spousal Support

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

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

How Much and How Long?

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

Provincial Guidelines

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

Last Words

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

When Does One Spouse Need to Pay Alimony?

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

How is Alimony Calculated?

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

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

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

What happens when one spouse has engaged in adultery?

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

How Is Spousal Support Calculated?

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

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

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

Length in Marriage

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

How to Create a Spousal Support Agreement

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

Free Initial Consultation with Lawyer

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

Michael R. Anderson, JD

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

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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What Types Of Spousal Support Am I Eligible For?

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What Types Of Spousal Support Am I Eligible For?

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

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

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

Temporary Support While the Divorce Is Pending

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

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

Short-Term and Rehabilitative Support

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

Long-Term or Permanent Support

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

Reimbursement Support

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

Financially Disadvantaged Spousal Support

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

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

Needs Based Spousal Support

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

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

How Much and How Long?

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

Provincial Guidelines

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

Last Words

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

When Does One Spouse Need to Pay Alimony?

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

How is Alimony Calculated?

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

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

What Constitutes Marital Misconduct?

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

What happens when one spouse has engaged in adultery?

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

How Is Spousal Support Calculated?

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

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

The Importance of Earning Capacity & Standard of Living

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

Length in Marriage

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

How to Create a Spousal Support Agreement

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

Free Initial Consultation with Lawyer

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

Michael R. Anderson, JD

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

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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What Is The Difference Between Alimony, Spousal Support, And Child Support?

What Is The Difference Between Alimony, Spousal Support, And Child Support?

Alimony, also known as spousal support, is an amount paid from one spouse to another following a divorce. A judge may order alimony payments for a specified period of time or until the spouse receiving support remarries. Alimony is generally intended to help the spouse receiving it maintain a similar lifestyle to the one they were accustomed to during the marriage.1 Alimony is not granted automatically—the spouse needing the alimony has to ask for it.

Tax Treatment of Alimony Payments

How you treat alimony for tax purposes depends on whether you pay it or receive it and when your divorce was finalized. If your divorce agreement was finalized prior to December 31, 2021 and you make alimony payments to your ex-spouse, those amounts are tax-deductible. That means you can deduct the alimony you’ve paid from your taxable income for the year, yielding a tax break.

On the other hand, if you’re receiving alimony payments, you must claim them as taxable income on your return. Again, this only applies if your divorce agreement was finalized before December 31, 2021.

IRS Rules Regarding Alimony

The IRS has several requirements that must be met for spousal support payments to be considered alimony, and therefore, deductible for divorce agreements finalized before December 31, 2021.
To qualify as alimony, ex-spouses must meet these criteria:
• They cannot file a joint tax return.
• Payments must be made in cash, by check, or money order.
• Payments must be owed under a divorce or separation agreement.
• The divorce or separation agreement doesn’t categorize the payments as not being alimony.
• Spouses must not live in the same household when payments are made.
• There’s no liability to continue the payments if the receiving spouse dies.
• Payments aren’t treated as child support or a property settlement.

If you’re eligible to deduct alimony payments you made, you can do that on your Form 1040, using Schedule 1. You’ll need to enter your former spouse’s Social Security number or individual taxpayer identification number on the form. Otherwise, the IRS may disallow the deduction. If you’re receiving alimony and it’s considered taxable income, you’d also report that on Form 1040, Schedule 1. And you too will need to include your former spouse’s Social Security number or taxpayer identification number.

What Determines Alimony Payments?

Alimony isn’t one-size-fits-all; the courts can use a number of factors to shape payment amounts, including:
• Each spouse’s income and employment situation
• Their individual living expenses
• How assets were divided in the divorce
• The length of the marriage
• Each spouse’s age

Alimony can be modified after the divorce in certain situations. For example, if the paying spouse loses their job they can ask the court to reduce the payment amount. And likewise, if the spouse receiving alimony sees their cost of living increase they can ask the court to order a higher support payment.

Alimony vs. Child Support

The key difference between alimony vs. child support is the intended use of each payment.
Alimony is paid for the benefit of a spouse; child support is paid for the benefit of any children resulting from the marriage.

Child support is designed to be used to meet the basics needs of the child. That includes things like food, clothing, medical care, housing, and other necessities.

Tax Treatment of Child Support

Because child support is intended to benefit the children, it’s not considered taxable income for the person who receives it. Child support payment is also not deductible for the parent who provides it.

IRS Rules Regarding Child Support

As child support is neither tax-deductible nor taxable income, there are no reporting requirements for making or receiving payments. Parents do, however, need to take care when claiming children as dependents on their taxes. Generally, the parent that the child lives with for the greater part of the year is the custodial parent for tax purposes. This parent is able to claim the child as a dependent, assuming the rules for claiming dependents are met. The non-custodial parent can, however, claim the child as a dependent if a separation agreement or divorce decree specifies that they can. The custodial parent has to sign Form 8332 authorizing the release of their right to claim the child as a dependent.

What Determines Child Support Payments?

Whether child support is court-ordered and in what amount largely depends on the finalized custody agreement and state law.

For example, some states may not order support if both parents earn similar incomes and share custody equally. Or, some states may base support on the number of children in the household and the non-custodial parent’s income.

Types of Spousal Support

Not all spousal support is the same—the amount and duration of alimony will depend on the specific facts and circumstances of your case. Most states offer different types of spousal support, including:
• rehabilitative support
• temporary support
• lump-sum support, and
• permanent support.

Rehabilitative Support

Rehabilitative alimony is typically granted to spouses who don’t yet have the job skills or education to enter the workforce and earn enough money to support themselves. Put simply, the idea behind this type of alimony is to provide an unemployed spouse the necessary time and financial assistance to become self-supporting. The duration of rehabilitative spousal varies, depending on the facts of each case, but it’s generally temporary and can be reviewed at the end of the term.

Temporary Support

From beginning to end, a divorce can take some time to complete and typically requires one spouse to move out of the marital home. During this time, spouses must continue paying the rent or a mortgage, property taxes, and other joint bills and expenses. To address these financial concerns, a judge may order temporary spousal support to the lower-earning spouse in order to maintain the status quo and cover basic necessities during the divorce proceeding. This type of alimony ensures that both parties can financially support themselves through the process.

Lump-sum Support

Lump-sum support is a way for a paying spouse to alleviate the long-term requirement of monthly payments after the divorce. Lump-sum alimony is a fixed amount that can’t be modified later and is paid up-front, so the recipient spouse doesn’t need to wait for a monthly check. The court will typically determine what the total monthly future payments would be after the divorce, and order a lump-sum payment equal to that amount.

Permanent Support

Permanent spousal support typically continues until the recipient remarries or dies (or the paying spouse dies). Some states terminate permanent spousal support if the recipient cohabitates with a new partner, but each state has specific rules for cohabitation and alimony. Courts typically reserve permanent spousal support for long-term marriages where there is a large discrepancy of income.

Spousal Support Factors

Each state has specific spousal support factors for the judge to evaluate. Unlike child support, which the court usually determines by a formula, most judges have broad discretion on whether to award spousal support and if so, the amount and duration of the assistance.

Typically, courts will evaluate:
• the length of the marriage
• each party’s ability to work
• both spouse’s health and age
• the financial status of each party after the divorce
• the recipient’s need for support and the paying spouse’s ability to pay
• general principals of fairness, and
• how each party behaved during the marriage (in some states).

If you’re going through a divorce and need alimony, or if your soon-to-be-ex is requesting financial support, consult with an experienced family law attorney before you proceed.

How Courts Set the Support Amount

Leaving a support decision in the hands of a judge is risky business. This isn’t like child support, where the formulas are clear and pretty rigid. In most states, the amount and duration of spousal support payments are entirely up to the judge. Obviously, it’s preferable for you and your spouse to keep control of decisions about spousal support. If the two of you can agree to an amount of support and how long it will be paid, then that’s what the judge will order. It’s the only way to predict what’s going to happen. Only about a dozen states give judges even general guidelines for calculating support. In these states, the judge uses a formula that takes into account the length of the marriage and the spouses’ respective incomes to calculate a starting figure. Then the judge factors in other circumstances to arrive at a final amount and decide how long the payments will last.

Need and Ability to Pay

Once the court decides that one spouse is entitled to support, it will try to quantify that need and the other spouse’s ability to pay. The judge may take into account:
• how property is being divided in the divorce
• the standard of living during the marriage, and the dependent spouse’s ability to maintain that standard in the absence of support
• each spouse’s separate income, assets, and obligations (states define “income” differently, with some including unearned income and others limiting the definition more strictly)
• the length of the marriage (more significant in deciding how long support will last than in determining the amount)
• whether the spouses lived together before they were married and whether any part of the cohabitation should be included in the length of the marriage
• each spouse’s age and health
• the needs of the children, and whether child care responsibilities affect the dependent spouse’s ability to return to work
• whether the dependent spouse left the workforce to be a homemaker or raise children
• how long the dependent spouse has been out of the workforce, that spouse’s marketable skills, and what retraining might be necessary
• contributions that either spouse made to the other’s training, education, or career advancement
• the possibility that either spouse may acquire assets in the future (such as the maturing of stock options or a large inheritance), and
• any other factors that the judge thinks should be considered.

Earning Capacity
In addition to looking at actual income, a judge may examine each spouse’s ability to earn money. The idea here is that if you could earn significantly more than you are, but voluntarily choose a lower standard of living, your spouse shouldn’t have to suffer financially because of it.
If either you or your spouse has skills or education that you are not using—for example, if you are trained as a lawyer but are working as a sculptor—the court can “impute” to you a higher income than what you actually have. You may be ordered to pay support consistent with your earning power, not your actual income. And if you’re the recipient spouse, you might get support that’s consistent with your ability to earn, rather than what you actually earn—or you may be ordered to fend for yourself.

Fault

In some states, you can argue that fault should be considered in setting spousal support (you can make this argument whether or not you filed for divorce on the basis of fault). If the higher-earning spouse committed adultery, was abusive, or is for some other reason at fault for the divorce, the support payment may be increased. Of course, as the saying goes, you can’t get blood from a turnip. If there’s only a certain amount of support that your errant spouse can afford, the court won’t order an unrealistically high payment. More commonly, the spouse who receives support has payments reduced because of fault.

Beyond Spousal Support

Spousal support is usually just a temporary measure, designed to keep one spouse from running into financial trouble immediately after a divorce. Even if you’re receiving support, you are ultimately responsible for your financial future. Make a one-year, three-year, and five-year plan for where you want to be in your life, and include what kind of work you want to be doing and what you want in terms of salary and benefits. If you received significant property or other assets in the divorce settlement, invest them wisely and with an eye toward the future. Learn to budget, if you haven’t yet.

Understanding Child Custody

For many parents, figuring out child custody is one of the most difficult and most important parts of a divorce. When children are involved, either the court must decide or the parents must agree on how to handle issues like whether and how custody will be shared, who will make decisions for the kids, and how visitation will work.

Types of Custody Arrangements

There’s no one-size-fits-all custody arrangement; the terms of your final custody plan are supposed to be tailored to meet the needs of your family. The final custody order should normally address both physical custody (which parent the child lives with) and legal custody (which parent has the right and obligation to make decisions about the child’s upbringing).

Most custody orders divvy up custody in one of the following ways:
• sole legal custody and sole physical custody to one parent
• sole physical custody and joint (shared) legal custody
• joint physical custody and joint legal custody, or
• sole legal custody and joint physical custody (rare).

When an order specifies that one parent has sole physical custody, the judge will typically create a visitation schedule to ensure the child has the opportunity to enjoy a meaningful relationship with the noncustodial parent.

How Courts Make Custody Decisions

Almost all courts use a standard that gives the “best interests of the child” the highest priority when deciding custody issues. What a judge considers to be in the best interests of the child depends on many factors, including:
• the child’s age, sex, and mental and physical health
• each parent’s mental and physical health
• each parent’s lifestyle and other social factors,
• the emotional bond between each parent and child, as well as each parent’s ability to give the child guidance
• each parent’s ability to provide the child with food, shelter, clothing, and medical care
• the child’s established living pattern (school, home, community, religious institution)
• the quality of the child’s education in the current situation
• the impact on the child of changing the status quo, and
• the child’s preference if the child is mature enough to express an opinion.

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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What Types Of Spousal Support Am I Eligible For?

What Types Of Spousal Support Am I Eligible For?

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

How long one ex-spouse must help support the other is as much in the judge’s discretion as is the amount of support. Some judges start with the assumption that support should last half as long as the marriage did, and then work up or down from there by looking at certain factors. Most states don’t have guidelines for the duration of support, but some do—for example, in Utah, payments are limited to three years except in special circumstances. In Utah, support can’t last any longer than the marriage did. And in some states the marriage must have lasted at least ten years for a court to order support at all. How long support lasts depends on the nature of the support.
It’s possible that a former spouse might receive more than one kind of support at the same time. If a spouse is getting more than one kind of support, say rehabilitative and short-term, then when the spouse is employed again, the rehabilitative support would end. The short-term support would continue until its termination date.

Temporary Support While the Divorce Is Pending

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

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

Short-Term and Rehabilitative Support

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

Long-Term or Permanent Support

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

Reimbursement Support

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

Financially Disadvantaged Spousal Support

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

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

Needs Based Spousal Support

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

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

How Much and How Long?

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

Provincial Guidelines

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

Other Thoughts on Alimony

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

When Does One Spouse Need to Pay Alimony?

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

How is Alimony Calculated?

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

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

What Constitutes Marital Misconduct?

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

What happens when one spouse has engaged in adultery?

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

How Is Spousal Support Calculated?

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

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

The Importance of Earning Capacity & Standard of Living

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

Length in Marriage

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

How to Create a Spousal Support Agreement

It is possible for spouses to work together to create a spousal support agreement. In order to create a spousal support agreement, the couple must create and sign a written agreement or stipulation without having to go in front of a judge. This is beneficial for spouses who don’t want a judge to decide for them and want to work on the agreement together. However, the court will have to accept and sign your agreement for it to be official.

To create a spousal support agreement, follow these steps:
1. Decide on the amount and duration of the spousal support
2. Write up your agreement.
3. Sign your agreement
4. Turn in your agreement to the court for the judge to sign
5. File your agreement/stipulation after the judge signs it

Free Initial Consultation with Lawyer

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

Michael R. Anderson, JD

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

Telephone: (801) 676-5506


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Family Attorney Salt Lake City Utah

If you need a family attorney in Salt Lake City Utah, you’ve reached the right page. Often referred to as the “Crossroads of the West,” Salt Lake City, the capital of Utah and the state’s most populous city, has also become a hub for business. Appearing on list after list of top-performing cities in the US, Salt Lake City’s economy is remarkably stable, thanks to both its forward-thinking, business-friendly policies and homegrown capital investment. Additionally, its population has become increasingly diverse. Since 2010, migration from other countries has accounted for 41 percent of Utah’s inbound growth. Additionally, Utah ranks second in the nation in its citizens’ support for LGBTQ non-discrimination protections, according to a poll by the Public Religion Research Institute.

Salt Lake City ranks among the top US states for business and personal income growth, family prosperity and quality of life. According to the most recent Hachman Index, Utah leads the nation in economic diversity and Forbes has listed Utah as the “top state for business” five times in the past ten years.

The attorneys in Salt Lake City offer a broad mix of legal services to a wide range of clients, including individuals, public and private companies, and educational and charitable organizations. These attorneys have handled complex business and finance transactions, banking-related matters and commercial litigation, as well as intellectual property, bankruptcy, real estate, tax, estate planning, employment, family law, and immigration matters, among other areas.

Salt Lake City-based lawyers have been recognized in Chambers USA: America’s Leading Lawyers for Business and Chambers High Net worth Guide, honored as “Lawyers of the Year” in The Best Lawyers in America, named to the Mountain States Super Lawyers list and included in Utah Business’s Legal Elite.

Family Law

Just about anyone can start a family on their own, but certain procedures affecting the responsibilities of family life must be pursued in court. While matters of the heart are very personal, the rights of same-sex couples to get married, laws regarding divorce, and the process of adopting a child are governed by state and federal laws.

“Family law,” therefore, refers to rules, regulations, and court procedures involving the family unit. While some family law matters may be handled without counsel, processes such as divorce and child custody often require the skill and expertise of a skilled attorney.

Much of our lives unfold within the family unit, often behind closed doors. And while our family lives are considered personal in many aspects, there is a whole body of law addressing certain laws and procedures affecting families, such as marriage, divorce, and even certain criminal statutes.

What Does A Family Law Attorney Do?

A family law attorney generally handles matters that involve the family court system, including family-related issues and domestic relationships. Some of the common practice areas family lawyers handle include:

Divorce/h2>

Marital property division

Prenuptial agreements

Child custody cases

Child support

Parental rights

Alimony or spousal support

Domestic violence

Restraining order

Estate planning

Adoption

Guardianship

Juvenile dependency

Juvenile delinquency

Child abuse

Family attorneys may work in many capacities, including as a private lawyer in a small family law firm, a family law lawyer in a big firm, for county or state government agencies, in nonprofit organizations, or as a state attorney. Attorneys act as advocates for their clients, which may include representing the interests of a minor child in child abuse or juvenile dependency hearings.

Do Family Law Attorneys Handle Divorce?

Yes. A large part of family law practice involves divorce. Divorce can be a difficult process, especially when the couple is in dispute over how to handle the separation. A contested divorce can get complicated when emotions are involved, often involving money problems or infidelity. Divorce is a major life-changing event and it can be difficult to navigate on your own.

In general, a divorce attorney can only represent one spouse in a divorce. There is a conflict of interest in trying to represent both spouses. When you find a family law attorney, your attorney will act as an advocate for you and advise you in your best interests.

In an uncontested divorce, a family law attorney can help their client prepare the divorce order, with all the issues settled between the couple, including division of property and child custody and visitation. In an uncontested divorce, there is nothing left for the court to decide and the court may issue the final divorce court order after making sure the couple has met all the statutory requirements to legally end the marriage.

In a contested divorce, there may be a dispute over many issues, including property, alimony, and child custody. If the couple cannot settle these issues through negotiations or mediation, it may be left up to the family court judge to decide how to settle the disputes. Contested divorces can take longer and be more expensive for each spouse.

Do You Need A Family Law Attorney?

Yes, you do. Some family law issues can be handled without an attorney, including simple court filings like name changes. However, when there are important issues at stake, it may be best to find an experienced attorney for legal advice. A divorce may involve dividing up a lot of money, property, and assets. Lack of legal representation may expose you to losing out on what you deserve after a separation.

The most important issue for many separating couples is visitation and child custody issues. If there are disputes in child custody, a family lawyer can help make sure your child will be safe and properly provided for. This includes granting custody with the custodial parent, working out a visitation schedule that is in the best interests of your child, and getting the financial support necessary to care for your child.

Utah Child Custody Laws

When a couple with children breaks up, the responsibility to care for the children must be shared by both parents. An important aspect is child custody or with whom the child will live with and what visitation with the other parent will be like. Another part of this responsibility is financial support, in the form of child support.

Best Interest of the Child

Utah family courts, like those in most states, determine child custody matters using the “best interests of the child.” The factors considered by the judge include:
 Past conduct and demonstrated moral standards of the parties
 Parent most likely to act in the best interest of the child, including allowing child frequent contact with non-custodial parent
 Bonding between each parent and the child
 If a parent has intentionally exposed the child to pornography or other harmful sexual-related materials
 Physical, psychological, and emotional needs of the child
 Both parent’s ability to reach shared decisions for the child and prioritize the child’s welfare
 If both parents participated in raising the child before the divorce
 The geographic proximity of the parents’ homes
 The child’s preferences
 Parents ability to protect child from their conflict
 Past and present ability to cooperate with each other in parenting and making decisions
 Any history of child abuse, domestic violence, or kidnapping
 Any other relevant factors
When parents can’t develop their own parenting schedule, the court can establish an appropriate schedule more or less than the statutory minimum parent-time based on the following best interest of the child factors:
 Top of Form
 Bottom of Form
 How parent-time would negatively impact child’s physical health and emotional development
 Distance between child’s home and the non-custodial parent’s home
 Allegations of child abuse
 Lack of demonstrated parenting skills when there’s no safeguards to ensure child’s safety
 Financial inability of non-custodial parent to provide food and shelter during parent-time
 Child’s preference, if sufficiently mature
 Parent’s incarceration
 Shared interests of the child and non-custodial parent
 Non-custodial parent’s involvement in the child’s school, community, religious, or other related activities
 Non-custodial parent’s availability to care for the child when the custodial parent is working or has other obligations
 Chronic pattern of missing, canceling or denying regularly scheduled parenting time
 Parent-time schedule of siblings
 Lack of reasonable alternatives for nursing child
 Any other criteria the court feels is relevant to the best interests of the child
 Custody Problems

Sometimes, a marriage or relationship ends badly. If children are involved, however, the former spouses must still communicate and cooperate to some degree, but child custody arrangements don’t always go according to plan. Custodial interference by a parent is one of the major problems that may arise after divorce or breakup, or in some non-divorce situations involving children.

What Legal Remedies are Available if a Parent Abducts a Child?

Sometimes in child custody disputes, feelings of anger or desperation lead a parent to run away with the children, in violation of a child custody order. Under both state and federal law, it is illegal to remove a child from his/her custodial parent or legal guardian. Under California’s penal code, for example, child abduction is considered a crime against the custodial parent.

Interstate Child Abduction

In a situation of parental kidnapping – yes, a parent can be charged with kidnapping their own child – law enforcement is often the best remedy available. Parents are also free to hire their own private investigator.

States have their own kidnapping laws, which may cover parental child abduction. In 2003, President George W. Bush signed the PROTECT Act into law, establishing the AMBER Alert system. Every state participates in the AMBER Alert system. It notifies law enforcement and the public when a child has been abducted.
To use the AMBER Alert system, the child must be 17 or younger and there must be a serious risk to the child of injury or death. Not every parental abduction case would qualify.

Legislatively, there are a number of federal laws that deter parental abduction of children. Before the Uniform Child Custody Jurisdiction Act (UCCJA) of 1968, parents could simply take their child to another state if they thought they had a better chance of getting custody in court. The UCCJA provides an interstate solution to remove that legal incentive for parental child abduction.

In 1980, the Parental Kidnapping Prevention Act (28 U.S.C. § 1738A) was passed to resolve jurisdictional conflicts in child custody cases. The PKPA promotes cooperation between states to make it easier to secure the return of abducted children.

PKPA is a federal law, so it trumps state law when there is a conflict between states. The Act tells state courts that they must enforce the child custody determination pending or already in place in the child’s home state/tribal court. The home state court has “preferred jurisdiction.”

The child’s home state is where the child lived for at least 6 months before a custody action was filed. That state court retains jurisdiction of the child custody case as long as at least one parent or the child lives there. That court can order the return of the child to the custodial parent.

If the child did not have a home state, a court in a state where the child and at least one parent have a significant connection can take jurisdiction. If a child is in danger or has been abandoned, the local court may take emergency jurisdiction. If a parent fleeing domestic violence has taken the children across state lines that would trigger emergency jurisdiction in the receiving state. If no court has jurisdiction, the nearest court can take jurisdiction as “the most appropriate forum.”

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) has been adopted by 49 states. It ensures interstate enforceability of child custody orders. It resolved conflicts between the PKPA and the UCCJA. It added protection for domestic violence victims who fled to another state for safe haven.

Parental Child Abduction: International Disputes

The International Parental Kidnapping Crime Act (IPKCA) made international kidnapping a criminal offense in 1993. A parent cannot remove or attempt to remove a child from the U.S. in order to obstruct another person’s custodial rights. The FBI investigates such cases.

There are two legal remedies that apply to international child abduction cases. The International Child Abduction Remedies Act (ICARA) and the Hague Convention on the Civil Aspects of International Child Abduction. ICARA established procedures to implement the Hague Convention. The Hague Convention works to return the child to their state of residence if they have been wrongly removed. It doesn’t settle child custody disputes. It seeks to return the situation to the status quo before the child abduction occurred.

If the parent had fled to a country that has not agreed to cooperate with the U.S. as part of an international treaty, a combination of legal and political pressure can be applied. A parent can petition a U.S. court to initiate judicial proceedings under the Convention for the return of their child. Outside of those countries, legal remedies vary greatly. The U.S. State Department’s Bureau of Consular Affairs can provide certain limited resources.

Every case of child abduction case is a violation of a child custody order. The penalties that apply for a violation of a child custody order may also apply here. Penalties include large fines, jail time, loss of custody, or loss of visitation rights.

Once your child is located and returned home, you’ll want to prevent a future recurrence. Parental child abduction is a very serious offense. It will damage the abducting parent’s standing in family law court. If you previously had joint custody, that parent could temporarily or permanently lose their custody rights. Of course, this will vary by state, judge, and family circumstances.

Enforcing Child Custody Orders

In Salt Lake City, Utah family law courts determine how much child support a non-custodial parent (a parent who doesn’t live with their minor child) is required to pay by using the state’s child support guidelines. These guidelines take into consideration both parents’ gross incomes and the number of children that they have together.

The court will follow the child support guidelines unless there is substantial evidence to rebut the guidelines. In order to determine whether or not to deviate from the guidelines the court will consider:
 The standard of living of the parents
 The relative wealth and income of the parents
 The ability of the non-custodial parent to earn
 The ability of the custodial parent to earn
 The ability of an incapacitated adult child to earn, or other benefits received by an adult child
 The needs of the custodial parent, the non-custodial parent, and the child
 The ages of the parties, and
 The responsibilities of the custodial parent and the non-custodial parent for the support of others

Imputed Income

In Salt Lake City, if a parent is unemployed or underemployed the court may impute an income on the parent in order to perform the child support calculations in the chart above. Imputed income is based on employment potential and probable earnings. This figure is calculated from employment opportunities, work history, occupation qualifications, and prevailing earnings for people of similar backgrounds in the community.

If a parent doesn’t have recent work history, or if their occupation is unknown, then the court can impute income on the parent at the federal minimum wage for a 40-hour workweek. However, income can’t be imputed if any of the following conditions exist (and aren’t temporary in nature):
 The reasonable costs of child care for the parents’ minor children equals the amount of income that the custodial parent can earn
 A parent is physically or mentally unable to earn the minimum wage, or
 The unusual emotional or physical needs of a child requires the custodial parent to stay home and care for them

Utah Child Abuse Laws

Criminal statutes are in place to keep people safe. Utah’s child abuse laws are designed to protect children from harm by prohibiting the physical, emotional, and sexual abuse of children. These child abuse statutes assist in prosecuting child abusers and mandate certain third parties and professionals with access to children to report knowledge or suspicion of child abuse to the authorities. Utah’s Department of Child and Family Services also provides resources statewide to protect the welfare of children.

All of us want to make sure children are safe from harm, but many of us may not realize just how prevalent child abuse is in the United States. There are over 3 million reports of child abuse each year, involving almost 6 million children, and between four and five children are killed by child abuse or neglect every day. If you suspect a child is being abused or neglected, there are state child abuse resources available that can help.

Free Initial Consultation For Family Law

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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