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Tag: Utah divorce

Alimony in Utah, in Simple but No Less Accurate, Easily Understood Terms

Alimony is a hotly debated subject, whether one is divorced or not. As with most controversial topics, misinformation seems to find its way into the discussion. Alimony is not nearly as complex a subject as you might think. In this article, we state what you need to know about alimony in Utah in simple—but accurate–terms.

What factors must the court consider in awarding alimony? See Utah Code § 30-3-5(10):

(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, including the impact of diminished workplace experience resulting from primarily caring for a child of the payor spouse;

(iii)       the ability of the payor spouse to provide support;

(iv)       the length of the marriage;

(v)        whether the recipient spouse has custody of a minor child 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 enabling the payor spouse to attend school during the marriage.

(b)        The court may consider the fault of the parties in determining whether to award alimony and the terms of the alimony.

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(d)        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 (10)(a). However, the court shall consider all relevant facts and equitable principles and may, in the court’s discretion, base alimony on the standard of living that existed at the time of trial. In marriages of short duration, when no child has been conceived or born during the marriage, the court may consider the standard of living that existed at the time of the marriage.

(e)        The court may, under appropriate circumstances, attempt to equalize the parties’ respective standards of living.

(f)        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.

(g)        In determining alimony when a marriage of short duration dissolves, and no child has 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.

Can you state the main factors for determining alimony in a nutshell? Yes. See Hansen v. Hansen (325 P.3d 864, 2014 UT App 96, ¶ 6 (Utah Court of Appeals, 2014)):

 “In fashioning an alimony award, the trial court is required to consider the payor spouse’s ability to pay and the recipient spouse’s need and ability to produce income.” Fish v. Fish, 2010 UT App 292, ¶ 12, 242 P.3d 787 (citing Utah Code Ann. § 30–3–5(8)(a)(i)–(iii) (Supp.2010) (current version at id. (LexisNexis 2013))). “Furthermore, the award should advance, as much as possible, the purposes of alimony by assisting the parties in achieving the same standard of living they enjoyed during the marriage, equalizing the parties’ respective standards of living, and preventing either spouse from becoming a public charge.” Id.

How is “fault” defined in the context of the alimony analysis? See Utah Code § 30-3-5(1)(b):

(b)        “Fault” means any of the following wrongful conduct during the marriage that substantially contributed to the breakup of the marriage:

(i)         engaging in sexual relations with an individual other than the party’s spouse;

(ii)        knowingly and intentionally causing or attempting to cause physical harm to the other party or a child;

(iii)       knowingly and intentionally causing the other party or a child to reasonably fear life-threatening harm; or

(iv)       substantially undermining the financial stability of the other party or the child.

If my spouse committed “fault” as defined in Utah Code § 30-3-5(1)(b), does that mean my spouse cannot be awarded alimony? No, not necessarily. While a spouse’s fault rarely results in disqualifying that spouse from receiving any alimony, fault can result in less alimony being paid (in the form of less paid each month and/or paid for a shorter length of time).

If I committed “fault” as defined in Utah Code § 30-3-5(1)(b), does that mean I must pay alimony? No (at least not under current construction of Utah law). Alimony cannot be awarded against you as a purely punitive measure, although your fault could result in paying more alimony (in the form of more paid each month and/or paid for a longer length of time) than you would have paid in the absence of fault.

See Roberts v. Roberts (335 P.3d 378 (Utah Court of Appeals, 2014), 2014 UT App 211):

It is settled law in Utah that “[t]he purpose of alimony is to provide support” to the recipient spouse “and not to inflict punitive damages” on the payor spouse. See English v. English, 565 P.2d 409, 411 (Utah 1977) (citation and internal quotation marks omitted). As early as 1946, the Utah Supreme Court overturned an alimony award that was clearly intended to “compensate [the wife] for her suffering” and “teach [the husband] a lesson.” Foreman v. Foreman, 111 Utah 72, 176 P.2d 144, 153–54 (1946). The court noted that “[n]either task is properly within the issues of a divorce case.” Id. at 153.

Does committing adultery automatically disqualify the adulterer/adulteress from receiving alimony? Does it automatically obligate the adulterer/adulteress to pay alimony? No and no. Adultery, standing alone, cannot have that effect.

What is the maximum period of time for which alimony can be awarded? See Utah Code § 30-3-5(e):

(i)         Except as provided in Subsection (11)(e)(iii), the court may not order alimony for a period of time longer than the length of the marriage.

(ii)        If a party is ordered to pay temporary alimony during the pendency of the divorce action, the period of time that the party pays temporary alimony shall be counted towards the period of time for which the party is ordered to pay alimony.

(iii)       At any time before the termination of alimony, the court may find extenuating circumstances or good cause that justify the payment of alimony for a longer period of time than the length of the marriage.

What does “the length of the marriage” mean? See Utah Code § 30-3-5(1)(c):

“Length of the marriage” means, for purposes of alimony, the number of years from the day on which the parties are legally married to the day on which the petition for divorce is filed with the court.

There are other aspects of alimony that Utah Code § 30-3-5 covers, so you’ll want to read the entire code section. Here is a link to Utah Code § 30-3-5

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I’m 14 and My Parents Are Separated and Are Getting a Divorce Soon, but Why Does the Court Decide How Many Times I See My Father and Not Me?

Allow me to start my answer to your question by acknowledging how unfair it is to children of divorce when courts refuse to hear from the children and refuse to allow them to weigh in on the child custody and parent time decisions.

Generally speaking, courts go out of their way to ensure that children are never heard from directly or on the record in a divorce case on the subjects of the child custody awards and the awards of parent time (also known as visitation).

The reasons why courts refuse to hear from children are many. They assert that questioning children about their experiences, observations, feelings, opinions, and desires pertaining to the child custody and parent time awards:

  • “puts them in the middle of their parents’ divorce,” but that is silly. The children are already aware that their parents are divorcing and if there is a fight over the child custody and parent time awards. They have the greatest stake in the outcome of the child custody and parent time decisions. Rather than “sheltering” children from harm by refusing to hear from them, courts end up failing the children far more and doing the children far more damage by refusing to consider children’s perspective to inform the court’s decisions better.
  • “puts them in a position of having to choose one parent over the other”. Nonsense. While it is true that a court could ask children, “Which parent do you want to live with?,” A court is clearly not required to ask such a question of the children. Sometimes a child’s preference may be important to know before a court makes the child custody and parent time awards, but even then, there are ways of discerning and learning a child’s preference without asking the child about it directly. Far more useful to the court will be eliciting information from the children regarding 1) the parents’ respective desires to be actively involved in their children’s lives postdivorce and 2) the parents’ respective levels of parental fitness. Rather than asking Johnny which parent he prefers, the court should find out from Johnny whether one parent clearly provides more care and attention to him than the other, whether one or both of his parents is abusive, neglectful, and absentee parent, impaired by substance abuse, etc.
  • doesn’t result in reliable evidence because children are easily manipulated, coached, or coerced. But that’s painting all children with an unfairly broad brush. While it is true that some children might be unreliable witnesses because they were manipulated, coached, and/or coerced, it would be unfair and foolish to presume that all children are that way. Rather than presuming a child will be an unreliable witness, the court needs to hear from the child first to gauge that child’s level of competency as a witness and the child’s level of credibility. That can’t happen if the child is never allowed to testify.
  • is a bad idea because kids shouldn’t get the idea that they call the shots. This is a silly argument too because asking a child what he wants doesn’t mean that the child controls the outcome, and it’s very easy to make that clear to a child by plainly stating, “while I am interested in knowing what your preferences are, it is not the single factor controlling my decisions.”

You are the one who will be most affected by the child custody and parent time awards. It will not only affect the rest of your life as a minor child, it can have a profound effect on the rest of your entire life. You deserve to be heard from, if you want to be heard. You are morally entitled to be heard from, if you want to be heard. The court and your parents need to respect your opinions. If you want your voice heard on the subject of the child custody and parent time awards, then unless you are in an extremely liberal and progressive jurisdiction, you are going to have to work extremely hard to ensure that happens. Frankly, the odds are against the court ever hearing from you directly as to your experiences, observations, feelings, opinions, and desires pertaining to the child custody and parent time awards. But there is too much riding on the outcome of the child custody and parent time awards for you to give up and stay silent.

 

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

(15) Eric Johnson’s answer to I’m 14 and my parents are separated and are getting a divorce soon, but why does the court decide how many times I see my father and not me? – Quora

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See Clearly to Succeed in Divorce

Click here to see what a flower looks like to a human eye and to see what the same flower looks like to a honeybee’s eyes.

How you perceive the divorce process and how judges and lawyers perceive it are two very different things. Both you and your spouse need to gain an accurate understanding of divorce law and the divorce process, if you have any hope of that process being amicable, quick, and inexpensive.

When you (and your spouse): understand how to work intelligently within the confines of divorce law you reduce conflict in the divorce process, whether that be in court or in negotiations. The more you and your spouse know about divorce law, court rules, and the divorce process up front:

  • the less you have to fear and dread the subject of divorce (you’ll never love it, but you won’t fear and dread it nearly as much)
  • you won’t worry over looking like a fool who doesn’t know what he/she is talking about because you will know what you’re talking about
  • the less you will procrastinate starting the process
  • the easier it will be to approach each other about divorce (it’s never an easy task, but you can make broaching the subject easier on the both of you)
  • the less time, effort, and money you and your spouse will waste angrily, foolishly, and embarrassingly arguing
  • the more of a businesslike, clear-headed (less emotional) approach you will take to the divorce process
  • the sooner you can confidently get down to the business of identifying and working out your divorce issues in a way that complies with the laws and rules governing divorce
  • the mutually fairer (and faster) agreement you will and your spouse will reach in settlement negotiations

Be warned: there will be many aspects of divorce law, court rules, procedure, and settlement that will outrage you.

The laws governing alimony, child custody, child support, division of retirement assets, and division of responsibility for marital debt, who keeps the house (if it’s keepable at all) are often not what you think and do not operate as you feel they should.

You can rail against “the insanity of it all!” if you want (and a little venting may be necessary to get it out of your system and clear your head), but being outraged won’t do you any favors at the bargaining table or in court.

The point of gaining a sufficiently broad and deep understanding of divorce law and the divorce process is to ensure you know what can and cannot be done, the range of what you can reasonably expect, and so that you don’t waste time, effort, and money on taking and arguing positions that have little to no chance of succeeding.

So much of what people fear and hate about divorce comes from being ignorant. Dispel the fear and hate by dispelling the ignorance.

“The more you know” was (and, I was surprised to learn, still is) a cheesy PSA campaign, but it’s no less true.

So:

  • take the time and make the effort to become informed and educated. It’s one of the best investments you’ll make in the course of your divorce (almost as valuable as hiring a skilled lawyer—really)
  • read the Our Divorce blog posts and watch the videos
  • read other blogs and articles and watch videos about the laws governing divorce in your jurisdiction
  • read the statutes and court rules governing divorce in your jurisdiction. Even if you don’t understand every word, it’s good to get an overview
  • and even if you think you understand the law(s), you will benefit from meeting and discussing with a lawyer (or two or three) what the statutes and rules mean and how the courts apply them
  • read the opinions of the appellate courts in your jurisdiction that addressed divorce issues

You and your spouse will both be better prepared for a better divorce experience for doing so.

 

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

 

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What if my spouse won’t complete the divorce orientation and education courses?

What if my spouse will not complete the divorce orientation and education courses for parents? Can the judge still grant the divorce?

Yes.

You can file a motion notifying the court that your spouse refuses to take the courses and assert that it is not equitable to deny you a divorce for your spouse’s inaction. You can ask that the court enter the decree of divorce nonetheless, with a provision that your spouse cannot exercise child custody or parent-time unless and until he/she has completed the mandatory courses. See below; the Utah Code provides that the court can waive the course requirements, and your spouse’s refusal to complete the courses is certainly a basis for seeking a waiver (I’ve done it myself for my clients many times):

Utah Code Section 30-3-11.3. Mandatory educational course for divorcing parents — Purpose — Curriculum — Exceptions.

(3) As a prerequisite to receiving a divorce decree, both parties are required to attend a mandatory course on their children’s needs after filing a complaint for divorce and receiving a docket number, unless waived under Section 30-3-4. If that requirement is waived, the court may permit the divorce action to proceed.

Utah Code Section 30-3-11.4. Mandatory orientation course for divorcing parties — Purpose — Curriculum — Exceptions.

(13) Both parties shall attend a divorce orientation course before a divorce decree may be entered, unless waived by the court. A certificate of completion constitutes evidence to the court of course completion by the parties.

Remember: the divorce orientation and education courses are mandated only for divorcing parents of minor children. If you and your spouse have no children or have no minor children, you and your spouse are not required to take the courses.

Sincerely,

Eric K. Johnson,

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

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