Getting divorced in Utah can be and usually is expensive; first you have attorney fees, court fees, property distribution, and division of responsibility for debts. Then there are other costs resulting from divorce that extend for years: child support and alimony. If you pay one, does that mean you are free from paying the other?
Child Support
Child support is just that, financial support for a child or children. Child support follows the child and is usually paid to a parent to help with the financial costs of rearing a child. Child support is calculated based upon the parents’ respective gross incomes and using a statutory formula to determine the amount of child support to be paid, and to whom it is paid. There are several options in child support calculators depending on your specific circumstance: sole custody, split custody, and joint custody, but the main calculators used are the sole custody calculator and joint custody calculator. If both parents have the minor child(ren) for more than 111 overnights then the parties have joint custody. If the non-custodial parent has less than 111 overnights then the custodial parent has sole physical custody. The more nights a child support payor has, the less support he or she pays.
Child support is awarded to the non-custodial parent in sole custody situations, and in joint custody situations it is usually awarded (albeit in a lesser amount than in a sole custody situation) to the parent with more overnights, depending on the income of each parent. Child support is usually awarded until the child reaches the age of 18, or graduates from high school with their normal graduating class whichever is later.[1] Child support payments are not tax deductible to the payor and are not considered income for the payee,
Alimony
Alimony is support for the spouse, arguably not for the child(ren). It is money to help the spouse continue to live a lifestyle similar to that they were accustom to during the marriage. Alimony is a different creature from child support; there is no specific statutory formula for determining what the payments will be, and it is therefore subject to the discretion of the court whether or not to award alimony, and for what amount. There are many factors the court can look at when awarding alimony[2]. Among the factors Utah courts consider are the standard of living existing at the time of separation or filing, need for alimony, ability to pay, and whether the marriage was of a long duration. While there is no iron clad rule as to what is considered “long duration” a good rule of thumb is more 7 years or more.
Once the court awards an amount of alimony it will also order how long it is to be paid. Alimony may not be ordered for a duration longer than the number of years that the marriage existed unless, at any time prior to termination of alimony, the court finds extenuating circumstances that justify the payment of alimony for a longer period of time.[3]
Unless a decree of divorce specifically provides otherwise, any order of the court that a party pay alimony to a former spouse automatically terminates upon the remarriage or death of that former spouse.[4] Alimony payments are tax deductible to the payor and are considered income for the payee, subject to IRS publication 504.
So the question remains, do you have to pay alimony and child support both? Well the answer is a firm maybe. If you have minor children and are ordered to pay alimony, then yes you do have to pay both. While you will likely be paying these alimony and child support to the same person, alimony and child support serve two distinct purposes (or at least they are meant to serve two distinct purposes—I know that is not always the case in real life). Child support is money for your children. Alimony is money for your spouse. If you are ordered to pay child support and alimony, then you will pay child support until your children reach the age of majority and will pay alimony for the term of the marriage, or until your spouse cohabitates, remarries, or dies.
[1] In the event that a child has special needs requiring support beyond the age of 18, the court can award child support until the child reaches the age of 21. See Utah Code § 15-2-1.
[2] See Utah Code § 30-3-5(8):
(8) (a) The court shall consider at least the following factors in determining alimony:
(i) the financial condition and needs of the recipient spouse;
(ii) the recipient’s earning capacity or ability to produce income;
(iii) the ability of the payor spouse to provide support;
(iv) the length of the marriage;
(v) whether the recipient spouse has custody of minor children requiring support;
(vi) whether the recipient spouse worked in a business owned or operated by the payor spouse; and
(vii) whether the recipient spouse directly contributed to any increase in the payor spouse’s skill by paying for education received by the payor spouse or allowing the payor spouse to attend school during the marriage.
(b) The court may consider the fault of the parties in determining alimony.
(c) As a general rule, the court should look to the standard of living, existing at the time of separation, in determining alimony in accordance with Subsection (8)(a). However, the court shall consider all relevant facts and equitable principles and may, in its discretion, base alimony on the standard of living that existed at the time of trial. In marriages of short duration, when no children have been conceived or born during the marriage, the court may consider the standard of living that existed at the time of the marriage.
(d) The court may, under appropriate circumstances, attempt to equalize the parties’ respective standards of living.
(e) When a marriage of long duration dissolves on the threshold of a major change in the income of one of the spouses due to the collective efforts of both, that change shall be considered in dividing the marital property and in determining the amount of alimony. If one spouse’s earning capacity has been greatly enhanced through the efforts of both spouses during the marriage, the court may make a compensating adjustment in dividing the marital property and awarding alimony.
(f) In determining alimony when a marriage of short duration dissolves, and no children have been conceived or born during the marriage, the court may consider restoring each party to the condition which existed at the time of the marriage.
(g) (i) The court has continuing jurisdiction to make substantive changes and new orders regarding alimony based on a substantial material change in circumstances not foreseeable at the time of the divorce.
(ii) The court may not modify alimony or issue a new order for alimony to address needs of the recipient that did not exist at the time the decree was entered, unless the court finds extenuating circumstances that justify that action.
(iii) In determining alimony, the income of any subsequent spouse of the payor may not be considered, except as provided in this Subsection (8).
(A) The court may consider the subsequent spouse’s financial ability to share living expenses.
(B) The court may consider the income of a subsequent spouse if the court finds that the payor’s improper conduct justifies that consideration.
(h) Alimony may not be ordered for a duration longer than the number of years that the marriage existed unless, at any time prior to termination of alimony, the court finds extenuating circumstances that justify the payment of alimony for a longer period of time.
(9) Unless a decree of divorce specifically provides otherwise, any order of the court that a party pay alimony to a former spouse automatically terminates upon the remarriage or death of that former spouse. However, if the remarriage is annulled and found to be void ab initio, payment of alimony shall resume if the party paying alimony is made a party to the action of annulment and his rights are determined.
(10) Any order of the court that a party pay alimony to a former spouse terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person.
[3] See Utah Code § 30-3-(8)(h).
[4] See Utah Code § 30-3-(9).
What do I have to do to get the alimony that I receive increased?
Thank you for reading, Lori. For the sake of your privacy, please call me to discuss your question further.