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Tag: separation

What Is the Benefit of a Legal Separation (Separate Maintenance) or a Temporary Separation Order in Utah?

Many people ask what the benefits of a legal separation are. Aside from the obvious “it gives us the option of staying together, if we want to,” are there other reasons the average person might want to separate but not divorce immediately?

I have the same conversation with potential clients who ask whether they “need” or “should get” a legal separation or temporary separation order instead of/before seeking a divorce. I tend to agree with you, i.e., that I see no benefits to legal separations for the majority of people. I’m sure that there is the occasional couple who might benefit from a legal separation or temporary separation order, but I have yet to encounter one. With two (maybe three) exceptions (and one of those ended in suicide), everyone I know who has separated ended up divorcing.

Sometimes separation makes sense if a spouse needs insurance coverage and can’t afford his/her own separate policy (note: some insurance policies require that spouses reside together, so in a situation like that, separation wouldn’t avail a spouse of insurance benefits).

Attorneys who sell separate maintenance or separation orders are, in my experience, doing so to make money, not to solve anyone’s or any couple’s problems.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Why Don’t All Divorced Wives Get Half of Their Husbands’ Property?

Because divorce is not about a spouse (man or woman) getting “half of everything”.

Depending upon whether a state is a “community property” state or an “equitable distribution” state, here is how property is divided between spouses in a divorce:

A community-property state is state in which spouses hold property that is acquired during marriage (other than property acquired by one spouse by inheritance, devise, or gift) as community property. Otherwise stated, all property that is acquired during the marriage by either spouse (other than property acquired by one spouse by inheritance, devise, or gift) or by both spouses together is jointly and equally owned and will be presumed to be divided in divorce equally between the divorcing spouses. Nine states are community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.

An equitable distribution state seeks to divide property in divorce in a fair, but not necessarily equal, manner. An equitable property state court can divide property between the spouses regardless of who holds title to the property. The courts consider many factors in awarding property, including (but not limited to) a spouse’s monetary contributions, nonmonetary assistance to a spouse’s career or earning potential, the efforts of each spouse during the marriage, the length of the marriage, whether the property was acquired before or after marriage, and whether the property acquired by one spouse by inheritance, devise, or gift. The court may take into account the relative earning capacity of the spouses and the fault of either spouse (See Black’s Law Dictionary, 11th ed.). Equitable distribution is applied in the non-community property states.

So, does a spouse “get half of everything” in divorce? Possibly, but not always, and now you know why.

Utah Family Law, LC | divorceutah.com | 801-466-9277

Why don’t all divorced wives get half of their husbands’ property? – Husbands and wives – Quora

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What do I do if my husband will not agree to a marriage separation but I desperately need a separation (he’s emotionally and mentally abusive)?

I cannot speak for the law in all jurisdictions governing divorce and separation, but I can tell you what the law is for the jurisdiction where I practice (Utah): 

One does not need the consent or agreement of one’s spouse to get a temporary separation order. See Utah Code § 30-3-4.5. (Motion for temporary separation order): 

(1) A petitioner may file an action for a temporary separation order without filing a petition for divorce by filing a petition for temporary separation and motion for temporary orders if: 

(a) the petitioner is lawfully married to the respondent; and 

(b) both parties are residents of the state for at least 90 days prior to the date of filing. 

(2) The temporary orders are valid for one year from the date of the hearing, or until one of the following occurs: 

(a) a petition for divorce is filed and consolidated with the petition for temporary separation; or 

(b) the case is dismissed. 

(3) If a petition for divorce is filed and consolidated with the petition for temporary separation, orders entered in the temporary separation shall continue in the consolidated case. 

(4) Both parties shall attend the divorce orientation course described in Section 30-3-11.4 within 60 days of the filing of the petition, for petitioner, and within 45 days of being served, for respondent. 

(5) Service shall be made upon respondent, together with a 20-day summons, in accordance with the rules of civil procedure. 

(6) The fee for filing the petition for temporary separation orders is $35. If either party files a petition for divorce within one year from the date of filing the petition for temporary separation, the separation filing fee shall be credited towards the filing fee for the divorce. 

  • But if your spouse does not want to separate and you do, does your marriage appear to be one that has a chance of being salvaged? 
  • Separations rarely help a couple reconcile and stay married. So ask yourself if you want a separation because you really think it’s a good idea or whether you “want” a separation because you’re afraid to pull the trigger on divorce. 
  • I would never discourage anyone from trying a separation if that is a step one feels one needs to take to ensure that every reasonable step to save the marriage was taken, but usually by the time one honestly and seriously considers separation that means the marriage is doomed. 

 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/What-do-I-do-if-my-husband-will-not-agree-to-a-marriage-separation-but-I-desperately-need-a-separation-hes-emotionally-and-mentally-abusive/answer/Eric-Johnson-311  

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Why are so many attorneys seemingly against legal separation?

Why are so many attorneys seemingly against legal separation? I truly feel in my circumstance its best for me/us. Is it because they wont make as much money? We have already started the divorce process. Can it be switched? 

I can’t speak for all divorce attorneys, and I am not an attorney licensed to practice law in Illinois (I practice divorce and family law in Utah), but I can tell you why I personally don’t like going the temporary separation route. 

Too many people divorce needlessly. Too many people divorce only to discover that their spouses and marriages weren’t their problem and/or that divorce wasn’t the solution. I support desires and efforts to save marriage. While legal separation may sound to some like a good way to “get some space” to contemplate whether one should stay married or should divorce, I’ve found that: 

legal separation tends to damage a marriage far more than fostering its survival; and  

by the time one wants a legal separation, he or she really wants a divorce and is only postponing divorce out of fear or laziness or for the sake of appeasing the other spouse or “letter him/her down easy”.  

While I am sure there are people out there whose legal separation proved that “absence makes the hear grow fonder” and helped them “wake up” and realize that their marriage is worth saving, I know no such people. 

If I recall correctly, I’ve seen one legal separation end with the couple later reconciling. In every other legal separation situation, the couple has eventually divorced. So you can see where this is going: why go to the additional trouble, expense, and emotional ordeal of obtaining a legal separation order if you’re going to end up divorcing anyway and having to go through more of the same kind of effort, wait, expense, and pain again? 

I understand the desire to give the marriage every last reasonable opportunity to survive. I understand the desire to take every reasonable effort to save it. But at the same time, I don’t see the point in pouring time, effort, care, and money into what is for most a hopeless cause. **That stated,** I would much rather “waste” time, effort, care, and money on taking every reasonable effort to save my marriage if it meant having the peace of mind that I gave saving my marriage everything I could in an effort to save it before deciding that it was not worth saving or that I alone could not save it and concluding that divorce was the only remaining option. 

Are there divorce lawyers who discourage legal separation because they make (or believe they make) less money working on a legal separation instead of a divorce? I’m sure there are. But not all of us are out to take the client for all he or she is worth (you’d be wise to ensure you don’t hire a greedy lawyer, but there are some among us who are decent, caring, trustworthy professionals worth seeking out). In my experience, if one wants to do all he or she can to save his or her marriage, then working to improve yourself as a spouse, making changes in your family environment, and giving your best efforts to some good marriage counseling are certainly worthwhile. Legal separation rarely, if ever, helps improve a marriage. It tends to weaken and destroy a marriage.  

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/Divorce-in-IL-Why-are-attorneys-against-legal-separation-I-truly-feel-in-my-circumstance-its-best-for-me-us-Is-it-because-they-wont-make-as-much-money-We-have-already-started-the-divorce-process-Can-it-be-switched/answer/Eric-Johnson-311 

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Can someone legally move out without notice and turn off utilities?

The judge finalized our divorce a month ago. My ex-husband decided to move out without any notice and then he turned off all utilities service. Can he legally do that without saying anything?

It depends upon 1) the rules and statutes that apply in your jurisdiction; and 2) the provisions in your decree of divorce (and related orders, if in your jurisdiction divorces end with multiple orders, as opposed to all of the orders in one “Decree of Divorce” document). 

For example, in the jurisdiction where I practice divorce and family law (Utah), there is no law that specifically prevents a divorced spouse from canceling the accounts for the household utilities.* Indeed, if, in a divorce proceeding, the house is awarded to one of the spouses and the other spouse must now move out, many such divorced spouses have good reason for canceling the accounts for the household utilities, and that is to ensure they are no longer billed and held liable for utilities for a house in which they no longer reside.  

If the provisions in your decree of divorce (and related orders, if in your jurisdiction divorces end with multiple orders, as opposed to all of the orders in one “Decree of Divorce” document) prohibit one’s ex-spouse from canceling or otherwise interfering with the other’s utilities, then the affected ex-spouse could move the court to hold the offending ex-spouse in contempt of court and seek to have the offending ex-spouse sanctioned for contempt.  

Now clearly there are usually better ways of handling the situation than secretly closing the accounts notifying the ex-spouse after the fact or not telling the other spouse at all and letting him/her discover it on his/her own, but just because it’s ill-mannered does not make illegal. And if there is no provision in the decree of divorce or related orders that don’t expressly prohibit you and your ex from canceling the utilities that are presumably in your joint names (because you presumably open the accounts when you were married to each other), there may be nothing (and their likely is nothing) that you could do through the courts to punish your ex-spouse for his/her actions.

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*If a divorced couple has minor children, it might be possible to argue that cutting off the utilities to the house could constitute child abuse under Utah Code § 76-5-109. If the couple has a disabled child, one might argue that canceling the utilities account(s) is abuse or neglect of a disabled child. § 76-5-110 (Abuse or neglect of a child with a disability). I don’t know if one could argue that canceling the utilities to the house could be construed as “criminal mischief” as defined in Utah Code § 76-6-106(2)(b)(i)(A) or (B) or (ii). 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/The-judge-finalized-our-divorce-a-month-ago-My-ex-husband-decided-to-move-out-without-any-notice-and-then-he-turned-off-all-utilities-service-Can-he-legally-do-that-without-saying-anything/answer/Eric-Johnson-311  

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Is staying with parents during pregnancy grounds for filing for divorce?

You don’t have to come up with creative reasons for getting a divorce anymore in the age of no-fault divorce (in the U.S.A.). 

You don’t have to find a reason to blame your spouse for seeking a divorce from your spouse. No-fault divorce literally means “no fault” need be shown as grounds for divorce. 

With these facts in mind, you almost don’t need to come up with an excuse a “good reason” to obtain a divorce anymore. I say “almost” because while it is true that you do not have to ascribe fault to your spouse as grounds for divorce, you usually have to give a legally recognized reason for the divorce, and in the jurisdiction where I practice divorce law (Utah), the no-fault basis that I’ve yet to have a court question or reject is “irreconcilable differences of the marriage”. Technically, a court could challenge one’s claims of irreconcilable differences and, if it determines that there are not, in fact, irreconcilable differences between the spouses, the court could deny the request for a decree of divorce and dismissed the divorce action, but I’ve never seen that happen in the 25 years I’ve been practicing law to date, and I doubt I ever will.  

Many would question the wisdom of no-fault divorce laws and their unintended consequences, but that doesn’t change the fact that no-fault divorce exists and exists in every state in the United States of America. 

So if you want a divorce, but you don’t have the typical fault-based grounds available to you, it doesn’t matter anymore. 

Now, to answer your specific question: if you sought a divorce purely on the grounds that your spouse lived with her parents during pregnancy, that would probably fail as grounds for divorce. However, if you were to allege that her separation from you for the duration of her pregnancy has caused irreconcilable differences, and you could prove that the marriage is irretrievably broken as a result, you’d win. You’d get a divorce. You might look like a heel for divorcing on those grounds, especially if your wife had good reason to need to spend most or all of her pregnancy in the presence and care of her parents (such as a high-risk pregnancy where she would need someone constantly with her in the event of an emergency or a sudden need to visit the hospital or doctor), but if you just couldn’t stand the fact that your wife stays with her parents during pregnancy and that cause you to give up on the marriage, the court would probably give you a divorce on the grounds of irreconcilable differences. 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/Is-staying-with-parents-during-pregnancy-a-divorce-cause/answer/Eric-Johnson-311

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If two unwed people have a child and split up, is it treated like a divorce?

If two people have a child out of wedlock, and they split up, is it treated like a divorce? 

I will answer this question for the jurisdiction of Utah. 

The child custody dispute (if there is one between the parents) is usually subject to the same laws and court rules that apply to the child custody award in a divorce action. That means that the court considers in a non-divorce child custody dispute the same factors for awarding child custody and child support as would apply in a divorce case in which child custody is an issue. 

But because the couple was not married, the court will not treat the couple as married, which means that the court will not divide between the two unmarried people property and responsibility for debt (because the court cannot do so in a paternity (now known as a “parentage”) case or in a child custody dispute case. For the same reasons, the court cannot award alimony or spousal support to someone who is not a spouse. 

If an unmarried couple acquired property or incurred debt jointly and they cannot or will not agree how to divide that property or responsibility for debt between them after the couple splits up, they would have to address those issues through legal processes other than a divorce action because only married people can divorce. 

Finally, there are a few states that recognize a couple as married even if they did not participate in a formal, legally recognized marriage ceremony (known as a “solemnized” marriage). Such is known as a common law marriage or as a valid, but unsolemnized marriage. In such jurisdictions, a man or woman can sue the other person he/she has lived with and had children with can file a lawsuit for a “divorce” and can obtain a decree of divorce and have the parties’ and their children subject to that jurisdiction’s divorce laws if, and only if, he/she can convince the court that the parties’ relationship should be recognized as a common law or legally valid unsolemnized marriage (See30-1-4.5. Validity of marriage not solemnized). 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/If-two-people-have-a-child-out-of-wedlock-and-they-split-up-is-it-treated-like-a-divorce/answer/Eric-Johnson-311  

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If you have 50/50 custody, how much vacation time from kids is approriate?

If you’re separated and have 50/50 custody, how much vacation time away from your kid is appropriate?

Too many variables to consider to give you an intelligent answer. 

How old is the child? How “clingy” is the child? How long is the child accustomed to being away from you already? What, if any, people and assistance do you have in place to care for the child while you are in vacation, if your ex is not willing to provide care and supervision for the child in your absence? At what point is X number of days away from the child having an unnecessarily adverse effect on the child? 

Once you have these questions answered, you will know how much vacation time away from the child is appropriate for you. 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/If-you-re-separated-and-have-50-50-custody-how-much-vacation-time-away-from-your-kid-is-appropriate/answer/Eric-Johnson-311  

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How does a divorce and separation from one parent affect children’s future relationships? Can this cause trust issues or commitment issues in the kids’ future relationship?  

Can this cause trust issues or commitment issues in the kids’ future relationship? Yes, of course.  

How? When the children have witnessed and experienced the destruction of their parents’ relationship—a relationship that is not only part and parcel of their own relationships with those parents, but a relationship that shapes all other relationships between themselves and other people—it has adverse effects. Those adverse effects can—in the even of a separation and/or divorce—(and usually will) include difficulty with trust and commitment in the children’s future relationships. 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/How-does-a-divorce-and-separation-from-one-parent-affect-children-s-future-relationships-Can-this-cause-trust-issues-or-commitment-issues-in-the-kids-future-relationship/answer/Eric-Johnson-311  

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Can I file for divorce and spousal support after being separated from my husband for 5 years?

This is an interesting question because if you have been financially independent of your spouse during your five year separation that implies that you don’t need financial support from your spouse.

Contrastingly, if for the past five years you have been destitute, have made requests of your spouse for financial support that your spouse has rejected, and have run up debts and other liabilities to meet your reasonable living expenses, then you would likely have a very strong basis for seeking alimony.

If, however, you have been separated from your spouse for five years and counting without having to rely for your financial support on a source other than your own income or other earnings in all that time, it is hard to imagine how you could make a compelling argument for deserving and alimony award.

One exceptional situation needs to be mentioned: if you have been self-supporting, but at a greatly reduced/lesser lifestyle, (i.e., you went from living at a certain level with your spouse because of your spouse’s affluence and ability to afford such a lifestyle to living more modestly on a modest income), then it may be possible for you to argue that you are entitled to alimony so that you can reach, or at least get as close as reasonably possible to, the lifestyle to which he became accustomed while married. One counter argument you could encounter (and I believe this argument would have merit) is that you have been self-supporting for so long — albeit at a lower level of income than you enjoyed before separation — that one can reasonably conclude that your change in lifestyle is no longer involuntary imposed upon you but a matter of your own personal choice.

And let’s and on a note of adding insult to injury: imagine that you had no choice but to pull yourself up by your own bootstraps after separation because your spouse refused to provide any financial support for you. Could you make some kind of argument that but for your spouse’s greedy neglect, you would have never needed to become self-supporting? In my legal opinion, the answer is: probably not. The court would not be looking to how or why you became self-supporting, and whether the circumstances under which you became self-supporting were “fair,” but only that you are now currently self-supporting.

Bottom line: if you have been living financially independent of your spouse for the past five years and counting, and if you are not living hand to mouth, it is unlikely that you will succeed in seeking and alimony award.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Can-I-file-for-divorce-and-spousal-support-after-being-separated-from-my-husband-for-5-years/answer/Eric-Johnson-311?prompt_topic_bio=1

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What if you don’t get divorced and just move away?

What if you don’t get divorced and just move away?

The risks and dangers in just up and moving away from (abandoning) your spouse are manifold. Here are a few that come to mind:

  • If you disappear and your spouse files for divorce and you cannot be found to be served with a copy of 1) the summons and 2) complaint for divorce, you could have default judgment entered against you without your knowledge and without you having appeared in the action to defend yourself.
    • you may lose most or all of the marital assets (even your premarital assets) by having them awarded to your spouse;
    • you may be ordered to pay most or all of the marital debts and obligations; and
    • you may be ordered to pay unfair amounts of child and/or spousal support
  • You are still responsible to care for your spouse, which means (at least in the jurisdiction where I practice divorce and family law) that if your spouse incurs debts and obligations for what are known as “necessaries”:

Morrison v. Federico, 232 P.2d 374 (Utah 1951):

The statute making “expenses of the family” chargeable upon the property of both spouses and permitting them to be sued jointly and separately, places liability upon both parties only where expenses incurred are necessary for the family benefit including expenditures proper to support the family and necessary to promote the well-being of its members and does not include attorney’s fees for legal services performed in a contemplated divorce action where reconciliation occurs.

  • 30-2-9. Family expenses–Joint and several liability:

(1) The expenses of the family and the education of the children are chargeable upon the property of both spouses or of either of them separately, for which expenses they may be sued jointly or separately.

(2) For the expenses described in Subsection (1), where there is a written agreement signed by either spouse that allows for the recovery of agreed upon amounts, a creditor or an assignee or successor in interest of the creditor is entitled to recover the contractually allowed amounts against both spouses, jointly and severally.

(3) Subsection (2) applies to all contracts and agreements under this section entered into by either spouse during the time the parties are married and living together.

(4) For the purposes of this section, family expenses are considered expenses incurred that benefit and promote the family unit. Items purchased pursuant to a written contract or agreement during the marriage that do not relate to family expenses are not covered by this section.

(5) The provisions of Subsections (2) and (3) do not create a right to attorney’s fees or collection fees as to the nonsigning spouse for purchases of:

(a) food or clothing; or

(b) home improvements or repairs over $5,000.

——————

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/What-if-you-don-t-get-divorced-and-just-move-away/answer/Eric-Johnson-311

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What if you don’t get divorced and just move away?

What if you don’t get divorced and just move away?

The risks and dangers in just up and moving away from (abandoning) your spouse are manifold. Here are a couple that come to mind:

  • If you disappear and your spouse files for divorce and you cannot be found to be served with a copy of 1) the summons and 2) complaint for divorce, you could have default judgment entered against you without your knowledge and without you having appeared in the action to defend yourself.
  • you may lose most or all of the marital assets (even your premarital assets) by having them awarded to your spouse;
  • you may be ordered to pay most or all of the marital debts and obligations; and
  • you may be ordered to pay unfair amounts of child and/or spousal support
  • You are still responsible to care for your spouse, which means (at least in the jurisdiction where I practice divorce and family law) that if your spouse incurs debts and obligations for what are known as “necessaries”:

Morrison v. Federico, 232 P.2d 374 (Utah 1951):

The statute making “expenses of the family” chargeable upon the property of both spouses and permitting them to be sued jointly and separately, places liability upon both parties only where expenses incurred are necessary for the family benefit including expenditures proper to support the family and necessary to promote the well-being of its members and does not include attorney’s fees for legal services performed in a contemplated divorce action where reconciliation occurs.

§ 30-2-9. Family expenses–Joint and several liability:

(1) The expenses of the family and the education of the children are chargeable upon the property of both spouses or of either of them separately, for which expenses they may be sued jointly or separately.

(2) For the expenses described in Subsection (1), where there is a written agreement signed by either spouse that allows for the recovery of agreed upon amounts, a creditor or an assignee or successor in interest of the creditor is entitled to recover the contractually allowed amounts against both spouses, jointly and severally.

(3) Subsection (2) applies to all contracts and agreements under this section entered into by either spouse during the time the parties are married and living together.

(4) For the purposes of this section, family expenses are considered expenses incurred that benefit and promote the family unit. Items purchased pursuant to a written contract or agreement during the marriage that do not relate to family expenses are not covered by this section.

(5) The provisions of Subsections (2) and (3) do not create a right to attorney’s fees or collection fees as to the nonsigning spouse for purchases of:

(a) food or clothing; or

(b) home improvements or repairs over $5,000.

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Can one spouse or the other avoid paying taxes on a joint tax?

Can one spouse or the other avoid paying taxes on a joint tax?

Tax law does not require married couples to file joint income tax returns simply by virtue of being married. So there is no such thing as a “joint tax” in that regard.

Spouses have the option of filing jointly or separately but are not required to file jointly.

Most married couples choose to file their tax returns jointly because there are generally greater tax savings and refunds available to those who file jointly.

This article also has some very interesting, very useful information about when it may make sense for a married couple to file their income tax returns separately. I have provided some excerpts below.

When married couples should file separate tax returns (by Ray Martin, CBS MoneyWatch)

https://www.cbsnews.com/news/when-married-couples-should-file-separate-tax-returns/

Unreimbursed medical expenses

“Unreimbursed out-of-pocket medical expenses can be claimed as an itemized deduction for amounts that exceed 7.5 percent of the taxpayer’s adjusted gross income. But if a couple has AGI of $140,000 and one spouse has incurred $10,000 of out-of-pocket medical expenses, none of these medical costs are eligible because they don’t exceed the 7.5 percent threshold, which in this example would be $10,500.

“However, if this couple files separately and the one who incurred the medical expenses of $10,000 has AGI of just $30,000, then $7,750 of the medical expenses could be eligible. Combined with other allowable deductions (charitable donations, mortgage interest, the SALT deduction limit of $5,000 for a married separate filer), this could significantly exceed the standard deduction for separate filers, which is $12,000 for each.

You don’t trust your spouse

“A very good reason good reason to file separately is because you don’t feel comfortable signing a joint tax return with your spouse, which both spouses must do when filing jointly. When you file jointly, you take full responsibility with your spouse, and both signers are responsible for the completeness and accuracy of the entire tax return, and each will each bear full responsibility to the IRS for any additional tax, penalty or interest due on an incorrect tax return.

“If you don’t want to merge your tax life with your partner, choosing the separate filing status offers a degree of financial protection because you’re responsible only for your own separately filed tax return.

Separated spouses

“Another good reason to file separate tax returns is that you and your spouse live separately but aren’t yet divorced. In that case, separate returns can help keep your finances separate. This can be especially beneficial if one of the spouses can qualify for head of household status because he or she is supporting the dependent children.

*****

The marriage penalty

“Another closely related tax topic involving marital status concerns the so-called marriage penalty. It refers to the situation when two people with the same income would pay more tax if they get married and file a joint return than if they stay single and file separately as singles.”

To find out whether it makes sense for you and your spouse to file separately or jointly, it’s worth consulting an accountant or tax preparer now, so that you are prepared to file your best return come April 15th. The fee charged for a consultation is well worth it for what it can save you in taxes.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Can-one-spouse-or-the-other-be-able-to-avoid-paying-taxes-on-a-joint-tax-Is-that-considered-fraud/answer/Eric-Johnson-311?prompt_topic_bio=1

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2020 UT App 34 – Petrzelka v. Goodwin – alimony, income, retirement funds

2020 UT App 34 THE UTAH COURT OF APPEALS

PEGGY PETRZELKA, Appellee,
v.
JAMES E. GOODWIN, Appellant.

Opinion
No. 20180923-CA
Filed March 5, 2020
First District Court, Logan Department
The Honorable Thomas Willmore
No. 164100050
Ashley E. Bown, Attorney for Appellant
Tess A. Davis, Attorney for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS concurred.

POHLMAN, Judge:

¶1        Peggy Petrzelka and James E. Goodwin married in September 2004, separated in February 2015, and divorced in February 2018. Following a bench trial, the court entered judgment on several issues, including alimony and the division of the parties’ retirement accounts. The court declined to award Goodwin alimony, finding that he was capable of meeting his own needs. The court also determined that the marital portion of Petrzelka’s retirement account would be valued as of March 1, 2015—the approximate date of the parties’ separation. Goodwin challenges both determinations, asserting that the court erred by declining to award him alimony and by declining to value Petrzelka’s account as of the time of the divorce decree or trial. We affirm.

BACKGROUND

¶2        Petrzelka and Goodwin married in September 2004. At the time, Petrzelka was forty-two years old, while Goodwin was sixty-one. During the marriage, the parties lived in a home that Petrzelka had purchased before their union. Both parties also worked. Petrzelka continued in her established teaching career, and Goodwin held jobs related to rural community development and land conservancy. While married, the parties kept their finances separate. They shared in some “very limited” joint expenses, but otherwise maintained separate bank and credit card accounts and spent their respective incomes how they wished.

¶3        Goodwin retired in 2012, and the parties separated in February 2015. After their separation, Goodwin moved to California, while Petrzelka remained in Utah. At the conclusion of a two-day trial in February 2018, the parties were granted a divorce.

¶4        Following the trial, the court entered judgment on several issues, including Goodwin’s claim for alimony and the division of the parties’ retirement accounts. Based on its assessment of Goodwin’s needs and his ability to meet them, the court declined to award alimony. It determined that Goodwin was able to meet his needs through a combination of his Social Security and retirement income, and income the court imputed to him at $15 per hour for twenty hours per week.

¶5        The court also determined that a portion of one of Petrzelka’s retirement accounts would be subject to division as marital property. Rather than setting the end date of the valuation period as the date of trial or the divorce decree as Goodwin requested, the court set the valuation period as September 4, 2004—the date of the parties’ marriage—to March 1, 2015—the month immediately following the parties’ separation.

ISSUES AND STANDARDS OF REVIEW

¶6        On appeal, Goodwin challenges the trial court’s decision not to award alimony. In general, trial courts in divorce actions are “permitted considerable discretion in adjusting the financial and property interests of the parties.” Rayner v. Rayner, 2013 UT App 269, ¶ 4, 316 P.3d 455 (cleaned up). “Accordingly, we will reverse only if (1) there was a misunderstanding or misapplication of the law resulting in substantial and prejudicial error; (2) the factual findings upon which the award was based are clearly erroneous; or (3) the party challenging the award shows that such a serious inequity has resulted as to manifest a clear abuse of discretion.” Gardner v. Gardner, 2019 UT 61, ¶ 18, 452 P.3d 1134 (cleaned up). “Because we can properly find abuse only if no reasonable person would take the view adopted by the trial court, appellants have a heavy burden to show that an alleged error falls into any of these three categories.” Id. (cleaned up).

¶7        Goodwin also challenges the trial court’s division of Petrzelka’s retirement account, arguing that the court erred in setting the end date of the valuation period as March 1, 2015, shortly after the parties’ separation, rather than the date of trial or the divorce decree. “Generally, the marital estate is valued at the time of the divorce decree or trial.” Jacobsen v. Jacobsen, 2011 UT App 161, ¶ 39, 257 P.3d 478 (cleaned up). However, as with alimony, the court has broad discretion to use a different date so long as its decision it supported by “sufficiently detailed findings of fact explaining its deviation from the general rule.” Id. (cleaned up); see also Rayner, 2013 UT App 269, ¶ 19 (“A trial court has broad discretion to deviate from [the] general rule when circumstances warrant.” (cleaned up)).

ANALYSIS

I. Denial of Alimony

¶8        Goodwin argues that the trial court exceeded its discretion by declining to award alimony. Alimony awards are generally aimed at “enabling the receiving spouse to maintain, as nearly as possible, the standard of living enjoyed during the marriage, and preventing the receiving spouse from becoming a public charge.” Anderson v. Anderson, 2018 UT App 19, ¶ 29, 414 P.3d 1069 (cleaned up); Rule v. Rule, 2017 UT App 137, ¶ 14, 402 P.3d 153.

¶9        To that end, in deciding whether to award alimony, a court must consider several factors relevant to alimony’s purposes, including the “financial condition and needs of the recipient spouse,” “the recipient’s earning capacity or ability to produce income,” and “the ability of the payor spouse to provide support.” Utah Code Ann. § 30-3-5(8)(a)(i)–(iii) (LexisNexis 2019); see also Jones v. Jones, 700 P.2d 1072, 1075 (Utah 1985) (same); Barrani v. Barrani, 2014 UT App 204, ¶ 21, 334 P.3d 994 (same). In assessing the parties’ needs and their respective abilities to fulfill those needs, courts should generally look to the marital standard of living. See Rule, 2017 UT App 137, ¶ 15; see also Utah Code Ann. § 30-3-5(8)(e) (instructing courts to, as a general rule, “look to the standard of living, existing at the time of separation,” in setting alimony awards). If a court determines that the spouse requesting alimony is able to meet his or her own needs, the court “should not award alimony.” Dobson v. Dobson, 2012 UT App 373, ¶ 22, 294 P.3d 591.

¶10 Further, courts in divorce cases may consider imputing income to an unemployed spouse in assessing the spouse’s ability to produce income. See Gardner v. Gardner, 2019 UT 61, ¶ 98, 452 P.3d 1134; Leppert v. Leppert, 2009 UT App 10, ¶ 12, 200 P.3d 223; see also Utah Code Ann. § 78B-12-203(8)(b) (LexisNexis 2018) (setting out the considerations for imputing income to a parent for child support).[1] All else being equal, a spouse who is capable of working ought to be “accountable for meeting [his or] her own needs to the extent” of that capability. Hansen v. Hansen, 2014 UT App 96, ¶ 9, 325 P.3d 864 (explaining that imputing income to a spouse “holds [that spouse] accountable for meeting her own needs to the extent she is capable”).

A. The Court’s Alimony Findings

¶11 Here, the court determined that, in light of the facts, circumstances, and equities at play, Goodwin was capable of meeting his own needs. It therefore declined to award alimony. To that end, the court made extensive findings with respect to both the facts it found relevant to the overall question of alimony and the statutory factors described in Utah Code section 30-3-5.

¶12 The court found relevant the fact that the marriage was “entered into later in life for both parties,” and it considered the parties’ respective situations before, and contributions to, the marriage. For example, the court found that Goodwin “did not give up anything by entering into the marriage” and brought no “assets or real income into the marriage.” With respect to Petrzelka, the court found that she brought “an established and successful teaching career into the marriage” and that there was “no evidence that [Goodwin] did anything to improve [Petrzelka’s] income or her education or her earning capacity.”

¶13 The court also determined that the “most significant factor” in its alimony calculus was the parties’ agreement to share only a few joint living expenses during the marriage. The court found that during the marriage “the parties agreed to equally pay certain limited joint living expenses” and that those shared expenses were “very, very limited.” In this respect, the court noted and “place[d] great weight on the fact that the parties essentially maintained separate standards of living,” where each party kept “separate accounts and expenses during the marriage,” which accordingly “allowed each party to spend their respective income how they wished.”

¶14 Regarding their separate living standards, the court also found “very persuasive” that Goodwin had “always lived beyond his means with his separate credit cards,” noting that he entered the marriage with a credit card balance and that he continued to carry one “after the date of separation due to his continual over-spending.” The court found such facts as “strong evidence of the parties’ standard of living during the marriage and especially [Goodwin’s] standard of living.”

¶15 As to Goodwin’s needs, the court accepted his stated monthly expenses of $3,349, finding them, “for the most part, reasonable,” though noting that his cable TV expenses, food budget, and credit card bills were “too high.”

¶16 With regard to Goodwin’s ability to meet his needs, the court found that Goodwin had a gross income of $3,571 per month. It reached this figure by adding Goodwin’s Social Security and retirement income, which it found was $2,271 per month, and imputing to Goodwin additional income of $1,300 per month based on a finding that Goodwin could work part-time (i.e., twenty hours per week) at $15 per hour.

The court’s imputation determination was based on several findings about Goodwin’s ability to produce income. For example, the court found that Goodwin had “very marketable” and “extensive job skills,” given his background and work history, and that “nothing . . . limits him from doing some sort of work.” In this respect, the court noted evidence showing that Goodwin remained somewhat active in his retirement—that he was able to travel, walk and hike with dogs, carry his grandchildren, babysit, and volunteer. The court additionally found that Goodwin would receive a “considerable sum from [Petrzelka’s] retirement account, which he did not contribute to or cause in any way to increase,” and that “such funds can be used for his support and for the payment of his debts.”

¶17 The court also accepted Petrzelka’s assertion that there is no right to retire, stating that there is no “legal right to quit supporting oneself in a divorce situation such as this.” And the court found that, under the circumstances, it was “not equitable for [Goodwin] to choose not to work or take any action to support himself.” The court then ultimately concluded, “[b]ased on the foregoing facts, circumstances and equitable principles,” that Goodwin was “capable of meeting his own needs” and that therefore no alimony would be awarded.

B. Goodwin’s Challenges to the Court’s Alimony Decision

¶18 In challenging the court’s denial of alimony, Goodwin suggests that the court’s evaluation of the relevant alimony factors was not proper, most significantly its decision to impute income to him. He also raises various challenges to some of the court’s alimony findings. Because the court’s decision to impute income to Goodwin plays a significant role in its overall decision not to award alimony, we first address Goodwin’s challenges to that decision. We then address Goodwin’s remaining challenges.

1. Imputation of Income

¶19 Goodwin argues, relying heavily on the fact of his retirement before the parties’ separation, that the trial court exceeded its discretion by imputing income to him. As discussed above, the court had “considerable discretion” to adjust Petrzelka’s and Goodwin’s financial interests, and its “actions are entitled to a presumption of validity.” Gardner v. Gardner, 2019 UT 61, ¶ 18, 452 P.3d 1134 (cleaned up). Accordingly, to prevail on his challenge to the court’s imputation decision, Goodwin must demonstrate that the court misunderstood or misapplied our alimony laws, that the factual findings supporting its decision were clearly erroneous, or that the imputation has resulted in “such a serious inequity” so as to “manifest a clear abuse of discretion.” Id. (cleaned up).

¶20 Goodwin does not suggest that the court’s decision to impute income to him arose from a misapplication or misunderstanding of the law; indeed, while the fact of his retirement is central to his imputation challenge, he concedes that there is no statutory right to retire in Utah. Instead, he suggests that the court’s decision to impute income to him results in a serious inequity. He also challenges the evidentiary basis for the court’s decision to impute income to him at the amount of $15 per hour. We address each argument below.

a. The Decision to Impute Income

¶21 As previously discussed, a court may consider imputing income to an unemployed spouse in evaluating a request for alimony. See Gardner, 2019 UT 61, ¶ 98; Leppert v. Leppert, 2009 UT App 10, ¶ 12, 200 P.3d 223. Utah Code section 78B-12-203 addresses imputation of income and provides that such imputation “shall be based upon employment potential and probable earnings” in tandem with consideration of a variety of factors, to the extent they are known, such as “employment opportunities,” “work history,” “age,” “health,” “other employment barriers and background factors,” and “prevailing earnings and job availability for persons of similar backgrounds in the community.” Utah Code Ann. § 78B-12­203(8)(b) (LexisNexis 2018).

¶22 Here, the court’s findings indicate that, despite Goodwin’s age and the fact of his retirement, the court was persuaded that the overall facts, circumstances, and equities surrounding the question of alimony supported the decision to impute income to him. Goodwin has not demonstrated that, given the whole host of considerations at play, this decision resulted in a serious inequity.

¶23      To begin with, the court found that Goodwin was capable of “some sort of work.” During the parties’ marriage, Goodwin had worked and had been able to produce income at a rate of over $50,000 per year—well exceeding the income the court imputed at $15 per hour on a part-time basis. The court also found that Goodwin had “very marketable skills” in light of his “background and work history,” which the evidence at trial suggested included experience in various employment sectors such as the Air Force, the solar power industry, pesticide sales, real estate, rural community development, land conservancy, and the financial industry. And in terms of his physical capabilities, the court found that, post-retirement, Goodwin had demonstrated an ability to pursue various activities, such as traveling, volunteering, walking and hiking with dogs, and interacting with and babysitting his grandchildren. Goodwin does not challenge these findings.

¶24 The court further found that the circumstances at play made it inequitable for Goodwin not to expend some effort to support himself. This was a later-in-life marriage for both parties, and the court found that the parties’ contributions to it at the outset differed. Petrzelka brought an established career, and the parties lived in the home she had purchased before the marriage. In contrast, Goodwin brought no “assets or real income” with him into the marriage, and the court found that there was no evidence that Goodwin “did anything to improve” Petrzelka’s income, education, or earning capacity.[2]

¶25 Most importantly, central to the court’s overall alimony decision was its determination that, for all intents and purposes, the parties lived separate financial lives during the marriage, with the result that the parties “essentially maintained separate standards of living.” While the parties may have contributed to certain shared monthly expenses, the court found that those shared expenses were “very, very limited” and were only ones to which both parties agreed. Significantly, the court also noted that Goodwin had consistently lived beyond his means, “with his separate credit cards,” before and during the marriage, as well as after the parties’ separation. Goodwin has not challenged these findings.

¶26 Given the full picture of the considerations and circumstances surrounding the court’s decision to impute income, we cannot say that imputing income to Goodwin on a part-time basis exceeded the bounds of the court’s broad discretion. Goodwin suggests his retirement during the parties’ marriage should have precluded the court from imputing income to him, but he has not demonstrated that this premise is at all sound. Because income imputation itself is primarily focused on a spouse’s ability to produce income, it is not unusual for courts to impute income to a spouse who has not worked during the marriage (or who has not worked for a number of years preceding the divorce) but who is nevertheless capable of producing income. E.g., Hartvigsen v. Hartvigsen, 2018 UT App 238, ¶¶ 6–22, 437 P.3d 1257 (affirming the trial court’s imputation of income, despite the fact that the spouse had not earned such an income for nineteen years, where the evidence showed she was capable of doing so); Hansen v. Hansen, 2014 UT App 96, ¶¶ 2–3, 8–9, 15 & n.4, 325 P.3d 864 (imputing income at minimum wage to a nonworking spouse, and “in spite of her advancing age,” even where, at the time of the divorce, the parties were living on retirement benefits); Leppert, 2009 UT App 10, ¶¶ 11–12 (affirming the imputation of income to a recipient spouse who had not worked for more than two decades where the court found that she was “capable of generating employment income at the minimum wage level”).

¶27 Thus, in the unique circumstances surrounding the parties’ marriage, and pursuant to the numerous unchallenged findings with respect to Goodwin’s ability to produce income and the equities in play, the court’s decision to impute income to Goodwin on a part-time basis at twenty hours a week did not result in “such a serious inequity” so as to “manifest a clear abuse of discretion.” See Gardner, 2019 UT 61, ¶ 18 (cleaned up).

b. Imputing Income at $15 per Hour

¶28 Goodwin also challenges the evidentiary support for the court’s decision to impute income to him at a rate of $15 per hour. He claims that figure was based on a finding that $15 per hour was California’s minimum wage. He asserts that the wage was suggested by Petrzelka only during closing argument and that there was no evidence introduced at trial to support it.

¶29 We do not agree with Goodwin’s characterization of the court’s findings. During its oral ruling, when asked by Goodwin’s counsel what the basis was for its decision to impute income at $15 per hour, the court initially responded that the minimum wage in “California is at $15 or right close to $15 per hour.” But when pressed by Goodwin’s counsel about whether the court would reconsider if that figure was not correct, the court stated that, “even if that is not minimum wage [in California], [Goodwin] could go out and find a $15 per hour [job] with his background and his ability to work.” The court’s later written findings of fact and conclusions of law reflect this reasoning; the court did not find that $15 was California’s minimum wage or suggest that its decision to impute that figure was so based. Rather, the court relied entirely on its determination that Goodwin’s “extensive job skills, training and work history allows him to find work earning at least $15 per hour.”[3]

¶30 By narrowing his challenge to the evidence (or lack thereof) supporting the proposition that California’s minimum wage is $15 per hour, Goodwin has made no attempt to deal with the stated basis for the court’s finding, as evidenced by its written findings. See generally M.F. v. J.F., 2013 UT App 247, ¶ 6, 312 P.3d 946 (“Our case law is clear that where a court’s oral ruling differs from a final written order, the latter controls.”). See also Living Rivers v. Executive Dir. of the Utah Dep’t of Envtl. Quality, 2017 UT 64, ¶¶ 36–51, 417 P.3d 57 (declining to reach the merits of the appeal where the petitioner “utterly fail[ed] to engage with the substance of the [lower tribunal’s] ruling”); Duchesne Land, LC v. Division of Consumer Prot., 2011 UT App 153, ¶ 8, 257 P.3d 441 (“Because [the appellants] have not addressed the actual basis for the district court’s ruling, they have failed to persuade us that the district court’s ruling constituted error . . . .”). Nor has Goodwin identified or dealt with the evidence supporting the court’s finding that his “job skills, training and work history” would allow him to find work at that amount per hour. Accordingly, Goodwin cannot persuade us that the court’s decision to impute income at that amount is against the clear weight of the evidence, and his challenge fails. See Taft v. Taft, 2016 UT App 135, ¶ 19, 379 P.3d 890.

¶31        In short, we affirm the court’s decision to impute income

to Goodwin at $15 per hour on a part-time basis. Goodwin has not demonstrated that the court’s decision to impute results in a serious inequity. He has also not adequately challenged the evidentiary basis supporting the decision to impute income in the amount of $15 per hour.

2. The Remaining Challenges to the Alimony Denial

¶32 Because we have affirmed the trial court’s decision to impute income as well as the hourly rate at which it did so, to persuade us that reversal is appropriate on the issue of alimony Goodwin must raise supportable challenges to other aspects of the court’s decision to deny alimony. Goodwin raises several distinct challenges to the court’s overall alimony denial, but none are ultimately persuasive.

a. Consequences of Imputing Income

¶33 First, Goodwin claims that the alimony denial is improper, even if the imputation decision is affirmed, because the court erred in dealing with the consequences attendant to imputing income to him. He claims that the court failed to properly account for the tax consequences of the imputed income, where it used his gross rather than net imputed income to calculate his ability to meet his needs. And he claims that the court should have increased his monthly expenses to reflect the costs of returning to the workforce, such as car-related costs, “increased food costs for eating outside the home, increased clothing costs, and increased health expenses.”

¶34      The tax issue is not properly before us. “A party seeking appellate review must provide a citation to the record showing that the issue was preserved in the trial court or a statement of grounds for seeking review of an issue not preserved in the trial court.” Shuman v. Shuman, 2017 UT App 192, ¶ 28, 406 P.3d 258 (cleaned up); Gowe v. Intermountain Healthcare, Inc., 2015 UT App 105, ¶ 7, 356 P.3d 683 (“We generally do not address unpreserved arguments raised for the first time on appeal. To preserve an argument for appellate review, the appellant must first present the argument to the district court in such a way that the court has an opportunity to rule on it.” (cleaned up)); see also Utah R. App. P. 24(a)(5)(B). Goodwin fails to demonstrate where in the record he preserved the request that the court impute net rather than gross income to him.[4] And based on our review of the record, we have found no request by Goodwin that the court consider the tax consequences of the imputed income. Thus, this issue has not been properly preserved for appeal.[5]

¶35      Moreover, even had Goodwin properly preserved the tax issue, he fails to demonstrate that this potential error affected the court’s alimony determination. Instead, he simply suggests that the court import the tax rate applicable to Petrzelka—someone employed full-time as a teacher, who is not retired and not receiving Social Security benefits as income—rather than explaining “what the actual tax consequences of the court’s error are or what they would have been had the court considered the tax implications” of his imputed income. See Gardner, 2019 UT 61, ¶ 105.

¶36      Similarly, Goodwin fails to carry his burden of persuasion with respect to the increased expenses related to working. While he argues that the court should have increased his expenses in various categories, at trial he did not present evidence of amounts to be added to give the court an evidentiary basis to do so. Likewise, on appeal, he fails to suggest any amount to be added for the various expenses or otherwise demonstrate how such increases might have affected the trial court’s overall alimony determination. See Pulham v. Kirsling, 2019 UT 18, ¶¶ 33–39, 443 P.3d 1217 (declining to reverse for a new trial on the issue of monthly income where the appellant had not demonstrated that, even if the court erred in its income finding, the error was harmful).

¶37      Thus, Goodwin has not shown that reversal is warranted on either point.

b. Marital Standard of Living Finding

¶38 Next, Goodwin disagrees with the court’s assessment of the effect the parties’ separate standards of living during the marriage ought to have on the question of alimony. He contends that if the parties indeed had separate standards of living as the court found, then, based on Petrzelka’s contributions to some of his living expenses during the marriage, the “only conclusion for the trial court to make is that [he] was and is still in need of alimony.”

¶39 However, alimony determinations are not made by rote, where there may be only one right conclusion. Instead, they are made in light of the range of unique circumstances in play. A trial court accordingly has considerable discretion in adjusting the parties’ financial and property interests post-divorce, and its adjustments to those interests are entitled to a presumption of validity. See Utah Code Ann. § 30-3-5(8)(a) (LexisNexis 2019) (setting forth a list of factors courts must consider in determining alimony); Gardner, 2019 UT 61, ¶ 18. To persuade us that reversal is appropriate, Goodwin must demonstrate something more than mere disagreement with the court’s evaluation of the evidence. See Gardner, 2019 UT 61, ¶ 18; Taft, 2016 UT App 135, ¶ 19.

¶40 And in suggesting that he should have been awarded alimony based on Petrzelka’s contributions to the few monthly expenses shared during the marriage, Goodwin fails to engage with the court’s reasoning or findings on their own terms or adequately account for the evidence supporting the decision not to award alimony. Among other things, he does not acknowledge the numerous findings that the evidence, as the court found it, suggested that Goodwin was capable of meeting his needs through his own income and that the parties’ deliberate separation of their finances during marriage was germane to the equities surrounding the alimony request. See Duchesne Land, 2011 UT App 153, ¶ 8; see also Rule v. Rule, 2017 UT App 137, ¶ 19, 402 P.3d 153 (“If the court determines that the receiving spouse is able to meet all her needs with her own income, then it should not award alimony.” (cleaned up)). Instead, Goodwin merely points to evidence he believes supports his position that the only appropriate conclusion was that he was in need of alimony at least in the minimum amount Petrzelka contributed to the parties’ joint expenses during the marriage. He cannot persuade us that reversal is appropriate on such a showing. See Taft, 2016 UT App 135, ¶ 19.

c. Material Omissions in the Findings

¶41 Finally, Goodwin claims that the court failed to make findings on certain “material” issues related to the alimony determination and that we should reverse on that basis. He contends that the court failed to account for $68.50 in monthly funeral costs and bank fees, which were not in his financial declaration but to which he testified. He also argues that “[t]here is no clear basis to determine what amount the trial court had in mind for [his] cable tv expenses, food expenses, and the credit card monthly payments,” where the court found that they were too high but made no specific findings on those expenses.

¶42      Even assuming there is merit to Goodwin’s complaints on these points, Goodwin must demonstrate that there is a “reasonable likelihood” that the omissions and errors he identifies affected (or, if in error, would affect) the court’s alimony denial. See Pulham, 2019 UT 18, ¶¶ 33–39 (declining to reverse for a new trial on the issue of monthly income where the appellant had not demonstrated that, even if the court erred in its income finding, the error was harmful); see also Gardner, 2019 UT 61, ¶ 103 (concluding that the appellant failed to meet her burden on appeal where she made no attempt to show that the court’s error resulted in harm). See generally Utah R. Civ. P. 61 (“The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”). In arguing that the court’s decision ought to be reversed for failure to make findings on this handful of expenses, Goodwin does not address all the reasons why alimony was denied or whether the court would have made a different decision had it considered the additional issues.

¶43      As discussed above, the court’s ultimate decision to deny alimony was based on more than mathematics. The court sought to reach what it considered to be an appropriate alimony determination in light of all the “facts, circumstances and equitable principles” uniquely at play. Thus, the court’s decision to deny alimony took into consideration more than simply the numbers the parties attached to their respective expenses and incomes. And because this is so, to persuade us that reversal is appropriate, Goodwin must demonstrate that even if the court’s omissions were in error, it is reasonably likely that the court would not have denied alimony in light of all the relevant facts, circumstances, and equities. See Pulham, 2019 UT 18, ¶¶ 33–39. Goodwin does not attempt to make any such showing.

¶44      Further, even on the numbers alone, we question whether Goodwin could demonstrate harm. If the court were to enter additional findings on Goodwin’s cable TV, food, and credit card expenses, the amount of Goodwin’s expenses would presumably decrease since the court found that those expenses were “too high.” And given that the court determined that Goodwin’s income—$3,571 per month—already exceeded the entirety of the expenses he claimed—$3,349 per month—we find it difficult to conclude that adding an additional $68.50 to his expenses would likely tip the balance in favor of an alimony award, particularly where other equities factored into the court’s decision. Accordingly, he has not demonstrated that, even assuming it was error not to make additional findings on the expenses to which he points, the error was harmful to him. Goodwin is therefore not entitled to reversal on this issue.

¶45 In sum, we conclude that Goodwin has not shown that the court exceeded its discretion in either its decision to impute income to him or in its overall decision to deny alimony. We therefore affirm the court’s denial of alimony.

II. Retirement Division

¶46 Goodwin argues that the trial court erred by valuing the marital retirement assets as of March 1, 2015 (following the parties’ separation), rather than the time of the divorce decree or trial in 2018. He claims that the circumstances in this case “did not warrant deviating from the standard of valuing the marital estate at the time of the divorce decree or trial.” He also generally contends that this decision was inequitable.

¶47      While a court should generally value the marital estate “at the time of the divorce decree or trial,” a court has broad discretion to value the parties’ marital assets at a different time, such as that of separation, if it determines that the circumstances so warrant. Rayner v. Rayner, 2013 UT App 269, ¶ 19, 316 P.3d 455 (cleaned up); see also Jacobsen v. Jacobsen, 2011 UT App 161, ¶ 39, 257 P.3d 478.

¶48 Here, the court had a reasoned basis for concluding that circumstances warranted deviation from the general rule. The court found that, around the time the parties separated in February 2015, Petrzelka “stopped personally contributing to her retirement account” but that “she maintained such account and it continued to grow.” As to Goodwin, the court found that “once [the parties] separated,” Goodwin “continued to overspend and live beyond his means” and “started dissipating his retirement accounts, rather than maintaining those.” For these reasons, the court determined that it would be “inequitable to use a later date,” and therefore determined that the marital period for valuing both parties’ retirement accounts would be from the date of the marriage in September 2004 to March 1, 2015.

¶49      Goodwin has not shown that the court’s decision to value the parties’ retirement accounts as of March 1, 2015, was inequitable or otherwise exceeded the court’s broad discretion. The trial court’s choice of March 1 as the relevant valuation date was thoughtfully made based on the parties’ respective treatment of their retirement accounts at the time of separation. Specifically, Petrzelka stopped contributing to her account, while Goodwin began drawing from his accounts to supplement his income. March 1, 2015, therefore fairly represents the approximate date that both parties’ treatment of their retirement accounts, in light of their separation, changed. In these circumstances, we cannot say that the trial court’s decision was inequitable or that it otherwise exceeded its broad discretion in deviating from the general rule. See Rayner, 2013 UT App 269, ¶ 19; Jacobsen, 2011 UT App 161, ¶ 39.

III. Attorney Fees

¶50 Both parties request attorney fees on appeal. Goodwin asks for fees because he was awarded them below. Petrzelka asks for her attorney fees on appeal, invoking rule 33 of the Utah Rules of Appellate Procedure and this court’s “inherent equitable power” to award fees “in the interest of justice and equity.”

¶51 As a general rule, a prevailing party on appeal who was awarded attorney fees below will also be awarded their appellate fees. See Stonehocker v. Stonehocker, 2008 UT App 11, ¶ 52, 176 P.3d 476. Because Goodwin has not prevailed on appeal, we decline to award him his fees.

¶52 As for Petrzelka’s request, because she was not awarded attorney fees below, she is not entitled to fees simply by virtue of prevailing on appeal. See id. And while attorney fees under rule 33 of the Utah Rules of Appellate Procedure may be awarded if a reviewing court determines that the appeal “is either frivolous or for delay,” Utah R. App. P. 33(a), “the imposition of such a sanction is only to be used in egregious cases,” Pyper v. Reil, 2018 UT App 200, ¶ 28 n.3, 437 P.3d 493 (cleaned up). We conclude that this is not such a case. For similar reasons, we are not inclined to otherwise exercise our equitable powers to award fees. We therefore decline Petrzelka’s request for attorney fees.

CONCLUSION

¶53 We affirm. Goodwin has not demonstrated that the trial court exceeded its discretion by imputing income to him at its chosen hourly rate or by determining that alimony was not warranted under the circumstances. Goodwin also has not demonstrated that the court’s decision to value the parties’ retirement accounts as of March 1, 2015, was inequitable or constituted an abuse of discretion. Finally, we decline to award either party their attorney fees.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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[1] “Although this section of the Utah Code addresses imputation for the purposes of child support, it is also relevant to imputation in the alimony context.” Hartvigsen v. Hartvigsen, 2018 UT App 238, ¶ 8 n.5, 437 P.3d 1257 (cleaned up).

[2] Goodwin briefly challenges the court’s findings with respect to his contributions to the marriage by characterizing them as findings that he “gave up nothing and brought nothing to this marriage” and by contending that such findings were “pure speculation.” However, Goodwin supports this argument by pointing to evidence that supports only his own position. He does not identify or address the evidence that might support the court’s findings on these points. To properly challenge the court’s findings, Goodwin must demonstrate that they do not follow logically from the evidence, or, stated another way, that they are against the clear weight of it. See Gardner v. Gardner, 2019 UT 61, ¶ 32, 452 P.3d 1134; Taft v. Taft, 2016 UT App 135, ¶ 16, 379 P.3d 890 (“A trial court’s factual determinations are clearly erroneous only if they are in conflict with the clear weight of the evidence, or if [this] court has a definite and firm conviction that a mistake has been made.” (cleaned up)). Goodwin has not met that burden.

[3] Following the court’s oral ruling, Goodwin objected to the proposed findings of fact and conclusions of law on several grounds, one of them being the proposed basis of the court’s decision to impute income at $15 per hour. The proposed findings of fact, like the final written findings, made no mention of California’s minimum wage. In his objections, Goodwin argued that language should be added to reflect a further finding by the court that “California’s minimum wage” is $15 per hour “or close thereto.” He suggested that such language was necessary because it “was the Court’s actual finding about why $15 per hour was being imputed” to him. By declining to include such language in its findings of fact, the court necessarily rejected Goodwin’s position.

[4] Instead, in his objections to the proposed findings of fact and conclusions of law, Goodwin specifically asked the court to “include the word ‘gross’ in describing the amount of income the Court is imputing to [him].”

[5] Ordinarily, parties’ respective tax obligations ought to be taken into consideration in making an alimony determination. See McPherson v. McPherson, 2011 UT App 382, ¶¶ 13–16, 265 P.3d 839.

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How is the custody going to work after separation?

After filling for legal separation where is my only child going to stay? I have my child with me right now. How is the custody going to work after separation?

The question of what the court will do regarding child custody is premature.

The first question you should ask is 1) “Can the other parent and I reach our own agreement on custodial and visitation (now often called parent time) arrangements?”

And if you and the other parent cannot reach agreement, then the second and third questions you should ask are 2) “What custodial and parent time arrangement is best for the children,” irrespective of what I may desire?” because that’s essentially the question the court will try to answer in fashioning its custody and parent time award; and 3) am I willing to spend thousands (maybe even tens of thousands) of dollars to fight over the issues of child custody and parent-time?

If you and your spouse/the other parent can agree on what the custody and parent time schedule will be between you both, then you both don’t need to bring that matter before the court for a temporary order. Far too often parents end up litigating more than they need to because they don’t realize they don’t need to litigate every issue. They don’t realize that they can (and should as much as possible) make agreements and follow those agreements.

That stated, I, as a divorce and family law attorney, am well aware that child custody is frequently (even usually) a bone of contention between parents who are separating or divorcing. Still, even parents that don’t get along may find it in their individual and mutual best interest to reach an agreement over child custody and parent time, instead of placing that decision in the hands of the court.

Before you go to the trouble and expense of litigating temporary child custody and support, it wouldn’t hurt you at all to try and work out an agreement on the subjects with the other parent first. Even if the other parent simply to negotiate or refuses to negotiate in good faith, you can go to court knowing that, for the sake of your kids, you did your best to reach consensus instead of conflict.

Judges don’t know (and thus cannot accommodate) your or your children’s needs nearly as well as you and the other parent do. For all that they say to the contrary, the truth is that judges usually don’t particularly care that much about other people’s children and what’s best for them. They deal with hundreds and thousands of couples and families, so to an extent, you can’t really blame them completely. Judges often have surprisingly obtuse, bizarre, and counterproductive ideas about what the best custodial and parent time arrangements are for children.

So as long as you and the other parent are decent and rational people, you should be able to come up with a custody arrangement that is not only fair to you as parents, but what your children need and deserve. If you and the other parent can’t set aside your own self-interest and posturing for the sake of doing what’s best for your children, then frankly you deserve to have the court impose a child custody and parent time award on you, like it or not.

If you and the other parent cannot reach an agreement regarding child custody and parent time so that the court is left to make that determination, then here are the factors that the courts in Utah (where I practice divorce and family law) consider in analyzing and determining what the child custody and parent time awards shall be:

Utah Code § 30-3-10(2):

(2) In determining any form of custody and parent-time under Subsection (1), the court shall consider the best interest of the child and may consider among other factors the court finds relevant, the following for each parent:

(a) evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, the parent, or a household member of the parent;

(b) the parent’s demonstrated understanding of, responsiveness to, and ability to meet the developmental needs of the child, including the child’s:

(i) physical needs;

(ii) emotional needs;

(iii) educational needs;

(iv) medical needs; and

(v) any special needs;

(c) the parent’s capacity and willingness to function as a parent, including:

(i) parenting skills;

(ii) co-parenting skills, including:

(A) ability to appropriately communicate with the other parent;

(B) ability to encourage the sharing of love and affection; and

(C) willingness to allow frequent and continuous contact between the child and the other parent, except that, if the court determines that the parent is acting to protect the child from domestic violence, neglect, or abuse, the parent’s protective actions may be taken into consideration; and

(iii) ability to provide personal care rather than surrogate care;

(d) in accordance with Subsection (10), the past conduct and demonstrated moral character of the parent;

(e) the emotional stability of the parent;

(f) the parent’s inability to function as a parent because of drug abuse, excessive drinking, or other causes;

(g) whether the parent has intentionally exposed the child to pornography or material harmful to minors, as “material” and “harmful to minors” are defined in Section 76-10-1201;

(h) the parent’s reasons for having relinquished custody or parent-time in the past;

(i) duration and depth of desire for custody or parent-time;

(j) the parent’s religious compatibility with the child;

(k) the parent’s financial responsibility;

(l) the child’s interaction and relationship with step-parents, extended family members of other individuals who may significantly affect the child’s best interests;

(m) who has been the primary caretaker of the child;

(n) previous parenting arrangements in which the child has been happy and well-adjusted in the home, school, and community;

(o) the relative benefit of keeping siblings together;

(p) the stated wishes and concerns of the child, taking into consideration the child’s cognitive ability and emotional maturity;

(q) the relative strength of the child’s bond with the parent, meaning the depth, quality, and nature of the relationship between the parent and the child; and

(r) any other factor the court finds relevant.

Utah Code § 30-3-10.2(2)

(2) In determining whether the best interest of a child will be served by ordering joint legal custody or joint physical custody or both, the court shall consider the custody factors in Section 30-3-10 and the following factors:

(a) whether the physical, psychological, and emotional needs and development of the child will benefit from joint legal custody or joint physical custody or both;

(b) the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child’s best interest;

(c) co-parenting skills, including:

(i) ability to appropriately communicate with the other parent;

(ii) ability to encourage the sharing of love and affection; and

(iii) willingness to allow frequent and continuous contact between the child and the other parent, except that, if the court determines that the parent is acting to protect the child from domestic violence, neglect, or abuse, the parent’s protective actions may be taken into consideration; and

(d) whether both parents participated in raising the child before the divorce;

(e) the geographical proximity of the homes of the parents;

(f) the preference of the child if the child is of sufficient age and capacity to reason so as to form an intelligent preference as to joint legal custody or joint physical custody or both;

(g) the maturity of the parents and their willingness and ability to protect the child from conflict that may arise between the parents;

(h) the past and present ability of the parents to cooperate with each other and make decisions jointly; and

(i) any other factor the court finds relevant.

Utah Code § 30-3-34. Parent-time — Best interests — Rebuttable presumption.

(1) If the parties are unable to agree on a parent-time schedule, the court may establish a parent-time schedule consistent with the best interests of the child.

(2) The advisory guidelines as provided in Section 30-3-33 and the parent-time schedule as provided in Sections 30-3-35 and 30-3-35.5 shall be presumed to be in the best interests of the child unless the court determines that Section 30-3-35.1 should apply. The parent-time schedule shall be considered the minimum parent-time to which the noncustodial parent and the child shall be entitled unless a parent can establish otherwise by a preponderance of the evidence that more or less parent-time should be awarded based upon one or more of the following criteria:

(a) parent-time would endanger the child’s physical health or mental health, or significantly impair the child’s emotional development;

(b) evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, a parent, or a household member of the parent;

(c) the distance between the residency of the child and the noncustodial parent;

(d) a credible allegation of child abuse has been made;

(e) the lack of demonstrated parenting skills without safeguards to ensure the child’s well-being during parent-time;

(f) the financial inability of the noncustodial parent to provide adequate food and shelter for the child during periods of parent-time;

(g) the preference of the child if the court determines the child is of sufficient maturity;

(h) the incarceration of the noncustodial parent in a county jail, secure youth corrections facility, or an adult corrections facility;

(i) shared interests between the child and the noncustodial parent;

(j) the involvement or lack of involvement of the noncustodial parent in the school, community, religious, or other related activities of the child;

(k) the availability of the noncustodial parent to care for the child when the custodial parent is unavailable to do so because of work or other circumstances;

(l) a substantial and chronic pattern of missing, canceling, or denying regularly scheduled parent-time;

(m) the minimal duration of and lack of significant bonding in the parents’ relationship before the conception of the child;

(n) the parent-time schedule of siblings;

(o) the lack of reasonable alternatives to the needs of a nursing child; and

(p) any other criteria the court determines relevant to the best interests of the child.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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What was it like to lose your siblings during a divorce?

What was it like to lose your siblings during a divorce?

I am a divorce lawyer, but neither I nor my parents ever divorced. I do not know personally what it feels like to be separated from siblings as a result of divorce, but I know in the course of my work people who were separated from their siblings as young children as the result of divorce, and as you might imagine, it didn’t do their relationship any favors.

The one exception (that occasionally occurs) is when divorce splits up siblings whose relationship is as bad as—or even worse than—their parents, which can actually reduce sibling rivalry and conflict to the point that the siblings come to have more affection for each other, now that they are exposed to one another in smaller doses. But this is the rare exception.

Divorce is traumatic enough for kids without cutting them off from the contact, familiarity, love, and support of their sibling(s).

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/What-was-it-like-to-lose-your-siblings-during-a-divorce/answer/Eric-Johnson-311

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