Which Spouse Pays Alimony?

Which Spouse Pays Alimony

Many states define alimony as a court-ordered payment made by one ex-spouse to the other. Courts can also award temporary spousal support while a divorce is pending. Judges award alimony in to try to equalize the financial resources of a divorcing couple. When deciding whether to award alimony, a judge will consider whether one spouse has a demonstrated financial need and if the other spouse has the ability to pay.
Judges usually award alimony in cases where the spouses have unequal earning power and have been married a long time. For example, a judge isn’t likely to award alimony if the couple has been married for only a year. In fact, some state laws allow alimony awards only when the couple has been married for a certain amount of time.

How Does Alimony Work?

Although judges have to follow state law in deciding whether alimony is appropriate, they usually have a lot of discretion in deciding when and how someone has to pay it. An alimony award can be temporary to support a spouse only while the divorce is pending or a permanent award that’s part of a divorce decree.
Alimony payments can be in the form of:
• a lump-sum payment
• a property transfer, or
• periodic (monthly) payments.

In general, lump-sum alimony awards and alimony in the form of a property transfer are non-modifiable, meaning they can’t be changed later and can’t be terminated or undone. Periodic alimony payments may be changed when there’s a significant change in one or both of the spouses’ circumstances. Periodic alimony awards are the most common and require one spouse to pay a certain amount to the other (the “supported” or “dependent” spouse) each month. A periodic or monthly alimony award will end on a date set by the judge, or when one of the following events occurs:

• the supported spouse remarries
• the supported spouse moves in with another person\
• either spouse dies, or
• a significant event (like a paying spouse’s retirement or a supported spouse’s new high-paying job) happens and a judge determines that alimony is no longer necessary.

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

Negotiating Alimony and Other Terms of Your Divorce

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

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

How Courts Decide Alimony

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

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

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

Tax Impacts of Alimony

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

Enforcing an Alimony Award

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

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

How the Amount of Alimony is Determined

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

Alimony and Support Orders

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

How Long Alimony Must Be Paid?

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

Alimony Trends

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

Who Qualifies for Spousal Support?

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

How Is the Amount of Alimony Determined?

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

How Does Alimony Operate?

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

Next, the lump-sum alimony awards and alimony in the form of a property transfer are generally non-modifiable, meaning they cannot be changed later and cannot be terminated or undone. For a periodic or monthly alimony award there will be an end date set by the judge, or it may terminate when one of the following events occurs:

• The supported spouse remarries;
• The supported spouse cohabitates;
• Either spouse dies or;
• A significant event occurs (paying spouse’s retirement) such that a judge determines that alimony is no longer necessary.

What Are the Divorce Alimony Rules?

If you are the spouse requesting the support, the question of whether you qualify for alimony is usually determined by taking into account your own income or ability to earn if you are not currently employed. However, this is not necessarily what you are earning at the time you go to court, but it represents your earning potential. For instance, if one spouse is trained as a medical doctor but took several years off to care for children and support the other spouse’s career, a judge will examine that spouse’s future earning potential. The spouse may need initial support to reenter the workforce, but not a long-term alimony award.
Following a divorce, you may also be required to make some changes in your life and work. For instance, if you have a part-time job that does not pay well, you may be required to attempt to find full-time employment in a higher-paying field. Courts can hire reporters to ensure that there is a good faith employment search and what the earning capacity of that spouse would be in the workforce.

How Do I Enforce an Alimony Award?

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

How Do I Terminate an Alimony Award?

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

When Should I Contact a Lawyer?

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

Free Alimony Consultation

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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Utah Divorce Code 30-3-2

Utah Divorce Code 30-3-2 – Right of Husband To Divorce. The husband may in all cases obtain a divorce from his wife for the same causes and in the same manner as the wife may obtain a divorce from her husband.

What Are Your Rights to the House in a Divorce

Divorce can leave a man single and without a home to call his own. State laws vary and each divorce case is unique in the eyes of the court. The circumstances surrounding the divorce play a part in deciding what is done with the assets of the marriage. Even if the man loses the right to live in the home, he may still be entitled to a part of the equity, including properties that were purchased by his wife before the marriage.

Marital Property

All property obtained during the course of the marriage by either the husband or the wife is considered to be shared in common by both spouses regardless of whether the state you were married in is an equitable distribution or a property earned state. The amount of money that the man spends on a property during the time of the marriage will determine how much, if any, of the home equity he is entitled to even if the property is in his wife’s name and not his. The only exception to the rule would be if the wife purchased the property using the proceeds that she acquired before the marriage.

Property Owned Before Marriage

Even in a situation where the wife had property before the date of the marriage, the husband may still have a share of the equity if mortgage payments or home improvements were funded by money earned during the marriage. Many states will provide the husband with one-half of the increased value of the home in these situations but, again, this depends on which state you are in.

Living Rights

The circumstances surrounding the divorce have much to do with who gets to live in the home. If the home belonged to the wife before the marriage, most likely she will be allowed to continue living in it. If the man is the one who initiated the divorce, or if she left you as the result of bad behavior on your part, it is most likely that you will lose possession of the house. In addition, you may even be required to make the mortgage payments even though it is no longer your place of residence.

Home Equity Payment

Regardless of who has temporary possession of the home, sooner or later the equity will need to be distributed per the courts instructions. This could mean that either the husband or the wife will need to buy out the share of their spouse or the property must be sold in order for each to receive their portion of the cash. Sometimes in a buyout situation, other marital property or debt can be used instead of actual cash in order to meet the requirements of the divorce agreement.

Jurisdiction

The English courts can dissolve foreign marriages so long as there is an appropriate connection. It may be that you and your spouse have connections with more than one country and that you have the option to get divorced here or abroad. Choosing the right country to get divorced in is important as it can have a big impact on how the marital finances are shared. If you think your spouse intends to start divorce proceedings in another country, you should seek family law advice urgently as you may wish to start divorce proceedings. This is known as a petition race.

Grounds for Divorce

The only ground (reason) for divorce is that your marriage has irretrievably broken down. Irretrievably means the marriage has broken down permanently and cannot be fixed. To prove that your marriage has broken down irretrievably, you must state one of five facts in your divorce petition:

• Adultery: Your husband has committed adultery with another woman or your wife has committed adultery with a man. Adultery is sexual intercourse between a married person and a person of the opposite sex who is not their spouse. If your husband or wife admits to adultery and agrees to the divorce proceedings, the divorce is likely to be accepted by the court. If your spouse does not admit to committing adultery you will need to provide the court with evidence of the adultery. In addition to the adultery, you must also prove that you find it intolerable to live with your spouse, either because of the adultery or because of some other behavior. Intolerable means that you cannot bear to be in the marriage any longer. If you continue to live with your husband or wife for 6 months after you find out about their adultery, then you cannot use that incident of adultery as the reason to divorce. You have the option to name the person who committed adultery with your husband or wife in your divorce petition (the “co-respondent”). However, if you do so you will have to send the divorce papers to that person as well as to your spouse. This will cause additional expense and delay if they do not co-operate.

• Unreasonable Behavior: your husband or wife has behaved in such a way that you cannot reasonably be expected to live with them. Unreasonable behavior can include a wide range of behavior from domestic violence to withholding love and affection. Generally you will need to set out 4 or 5 examples of your spouse’s behavior. It may be helpful to include the first, the worst and the most recent incident of the unreasonable behavior during the marriage. If you continue to live as a couple for 6 months after the last incident of unreasonable behavior, it may be harder to prove to the court that you cannot reasonably be expected to live with your spouse.

• Desertion: Your husband or wife has deserted you for at least two years. You need to show that your spouse left you in order to end your relationship, without your agreement and without a good reason, for at least two years. This is difficult to prove so it is very unusual to use this fact.

• Two years separation with consent: You and your spouse have been separated for a continuous period of two years and you both agree to the divorce. You need not necessarily have lived in separate homes but you need to have had separate lives, for example, eating and doing domestic chores separately and sleeping in different rooms. Your spouse must agree to the divorce on the basis that you have been separated for a continuous period of two years. It is a good idea to check whether your spouse will agree before sending your divorce petition to the court.

• Five years separation: You and your spouse have been separated for a continuous period of five years. If you have been separated for 5 years you are entitled to apply for divorce, even if your spouse does not consent. Your spouse can only oppose the divorce if they can argue that ending the marriage would result in serious financial or other hardship.

Responding to a Divorce Petition

Your spouse will be required to sign and return and Acknowledgement of Service form to the court, in order to show that he or she has received the petition. This must normally reach the court within eight days, starting on the day after they receive the divorce papers, although time limits will be longer if your spouse is being served outside the country. The Acknowledgement of Service form allows your spouse to say whether or not they agree with the contents of the divorce papers and whether they wish to defend the divorce. Defended divorces are rare because if one person wants a divorce, that is usually a sign that the marriage has broken down. Consenting to a divorce will not normally affect a person’s rights in terms of finances or the children. The child arrangements and finances may need to be resolved, but it is unlikely to matter who divorced whom or what reason was given in the petition. A defended divorce can also cost a lot of money, as a court hearing will normally be listed, which you may have to attend. If your spouse defends your divorce petition, you should seek legal advice.

If your husband has told you that he has received the divorce papers but he refuses to send the Acknowledgement of Service form to the court, you can apply to the court to make an order of deemed service. You must prove to the court that your spouse has received the divorce papers. If the court is satisfied that your spouse has received the papers, it can make an order that your spouse was served on a particular date. The court needs your spouse’s address in order to serve the divorce papers on them. If you have lost contact with your spouse and do not know where they live or work you may be able to use an alternative method of service. Before requesting an alternative method of service from the court, it is important that you have made every effort to find out where your spouse lives from their family, friends, employer and anyone else who knows them. If you still cannot trace them you can apply to the court for substituted service. This normally means sending the documents to a different address, such as a friend or family member you know he is close to, or his work address, or email or even Facebook. If, in spite of trying the above, you simply cannot trace your spouse, you can apply to a district judge for an order dispensing with service. If the judge is satisfied that you have done everything you can to try and find your spouse, the judge can make an order that the divorce can proceed without the divorce papers being served on them.

How long will it take?

Even the most straightforward divorce can take between 4 and 6 months and it is often advisable to postpone applying for decree absolute until any financial proceedings have concluded as it can affect your rights to live in the family home, pensions, or other issues relating to joint finances. If your spouse is uncooperative of there are complications resolving the finances, the divorce could take much longer. There is a waiting time in Utah of 30 days for a divorce to enter.

My home rights

A person has a right to live in a property if it is their matrimonial home. This means that even if your spouse owns the property in their sole name, you have the right to live there until your marriage ends. This is called matrimonial home rights. If your home is in your spouse’s sole name the divorce may end your right to live there so it is important to seek legal advice.

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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