What Alimony Is and What Alimony Is Not in Utah – Part 4 of 4

It’s tempting to try to rationalize and justify an unfair alimony decision, either by paying too little or obtaining too much alimony. And it’s hard to say just exactly what is and is not affair alimony award. If you were permitted to try the same alimony case involving the same parties and the same facts in front of several different judges, you could and likely would get several differing—even potentially wildly differing—alimony awards. In my professional opinion, the best and fairest way to make the strongest and most persuasive alimony arguments is by basing them upon the Golden Rule (i.e., do as you would be done by). Conduct A scrupulously honest assessment of both your and your spouse’s incomes and expenses. If out of your income you can cover your expenses of the lifestyle to which you became accustomed during the marriage and have a surplus each month, and if your spouse cannot cover his/her expenses of the lifestyle to which he/she became accustomed during the marriage, then it is only fair that you pay some alimony.

Even when you are confronted with the situation where two cannot live more cheaply apart than they could under the same roof together, alimony might still be awarded under what is known in Utah as the “equalization of income” or “equalization of poverty” analysis:

Equalization of income, which “is perhaps better described as ‘equalization of poverty,’ ” is a trial court’s remedy for “those situations in which one party does not earn enough to cover his or her demonstrated needs and the other party does not have the ability to pay enough to cover those needs.” Sellers v. Sellers, 2010 UT App 393, ¶ 3, 246 P.3d 173. When this situation arises, the trial court must determine how to equitably allocate the burden of insufficient income that occurs when the resources that were sufficient to cover the expenses of a couple must now be stretched to accommodate the needs of two individuals living separately. Such a situation arose in this case where the parties had a combined $6,722 in monthly expenses that the trial court found reasonable and only $2,913 in net monthly income. The court attempted to equalize the parties’ poverty by setting alimony at a rate whereby they would each be “left with a monthly shortfall of approximately $1928” between their incomes and their expenses. This is not an unreasonable approach at a theoretical level. See generally Hansen v. Hansen, 2014 UT App 96, ¶ 4, 325 P.3d 864 (noting that the trial court equalized the parties’ standards of living by awarding alimony in a way that resulted in “each party having an equal monthly shortfall”); Kidd v. Kidd, 2014 UT App 26, ¶ 3, 321 P.3d 200 (noting that by “adding the parties’ monthly income” and “dividing that income in half,” then awarding the wife the difference between one-half the parties’ total income and her individual income, the trial court “intended to ensure that the shortfall in their ability to maintain the marital standard of living was equitably shared”).

(Keyes v. Keyes, 351 P.3d 907, ¶ 39 (Utah Ct.App. 2015), 2015 UT App 114)

Utah Family Law, LC | | 801-466-9277

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