Even when divorce is for the best, it can make a person feel as though their whole life has turned upside down. Going from a two-person income household to two different one-person income households can also be a significant financial change for both former spouses. If a divorce was somewhat rushed and a spouse failed to really consider the financial situation he or she would be in after the divorce, or there was a substantial change in financial situations for a spouse after divorce for some other reason, that spouse may wish to revisit the alimony issue even after the divorce has been finalized. Is this, however, even possible?
Alimony is one of the issues addressed in divorce proceedings. Sometimes, the spouses will come to their own agreement on alimony and the judge will more often than not approve the agreement and include it in the final order of divorce. Without an agreement, the court will address the issue of alimony. While the alimony issue is settled, in some sense, during divorce proceedings, it can be revisited later on. This, however, will require a spouse to show that he or she has experienced a change in circumstances that would merit revisiting the issue.
It is important to note, however, that you will not be able to seek a modification of an alimony order unless there is an alimony order in place. If you waived alimony or if the court did not award any alimony, the issue cannot and will not be revisited later on. This is why the divorce orders for some couples include even just a nominal amount of an alimony award. The nominal amount acts as a kind of placeholder. It keeps the door open on the possibility of revisiting and modifying the award after the divorce has been finalized. Both potential payor spouses and payee spouses should be aware of this possibility before agreeing to even a nominal alimony award as part of finalizing a divorce. That nominal amount can be modified later on should a spouse experience a change of circumstances that would merit such modification.
Alimony is a payment from one spouse to another, sometimes described as “awards in connection with the dissolution of a marriage that are not child support or the division of property.” It can be lump-sum, or periodic, and can be expressly modifiable or non-modifiable, and temporary or “permanent” (until circumstances change). Typically payments end at the death of either party, or the re-marriage of the recipient, but it can be made to survive re-marriage. It can be ordered to, or from either gender, or in a same-sex marriage case.
Post-divorce alimony (as distinguished from temporary “maintenance” during a divorce) are payments made after divorce is completed, but the amount is normally allocated before court proceedings come to an end. There are three different kinds of post-divorce alimony — permanent alimony, temporary alimony, and rehabilitative alimony. There are also at least seven different rationales for awarding post-divorce alimony — reimbursement, rehabilitative, career asset compensation, loss or waste compensation, loss of earning capacity compensation, divergence in future living standards compensation, and residual equity.
The history and rationales can vary enormously and several have strong historical roots, as the popular conception of alimony awarded to maintain the marital standard of living, or where one spouse may have sacrificed career prospects to raise children. Alimony can be stipulated by the parties or awarded by a judge at trial; either way, any such award should be based on the past, present, and future financial situation of both spouses. In Utah, alimony is “no-fault” and not to be awarded, or denied, based on allegations of misbehavior.
Each state’s courts have different rules and policies regarding the discretion of judges to award alimony.
Usually, this question is brought up during the initial divorce proceedings. But, it is sometimes possible to address this issue again at a later date. Typically, this requires a showing of a change in circumstances by the spouse requesting alimony. By way of background, alimony is a form of spousal support one former spouse makes to the other after divorce. The point of alimony was to keep one spouse from a sudden negative change of life quality as a result of the divorce, such as the stay at home mother who sacrificed a career to care for the children and now has little means of providing for herself. As the saying goes, it is intended to keep one of the former spouses from going from “the penthouse to the gutter.” During the initial divorce, spouses can agree upon alimony payments and judges rarely adjust these agreements when entering a final ruling on the divorce.
If there is no agreement, the court is able to look at the financial evidence of each spouse – their ability to pay, earn, and their respective need and then make a determination on its own as to who gets what. In the modern setting, where both men and women commonly pursue lifelong careers and have increasingly equal earning opportunities, most courts will only award alimony payments on a “rehabilitative” (i.e., temporary) basis.
Rehabilitative alimony payments stop either by a set time or when the spouse receiving the rehabilitative alimony is able to become self-sufficient or remarries. In some jurisdictions, even “no fault” ones, courts can consider factors such as relative fault in the dissolution, education, and other factors relative to earning ability and whether a party deserves the support.
Revisiting the Issue of Alimony
If, however, one does not ask for or receive alimony during the initial divorce proceedings, but subsequently finds additional need for support, it is possible to revisit the issue. To do this, most jurisdictions require the former spouse in need of the new alimony to show “changed circumstances.” If the original divorce came about as the result of an agreement between the parties, it will take a fairly significant showing of cause as to why the court should set aside what amounts to a contract between the former spouses. This would be a substantial change in personal and financial circumstances, and probably not of the requesting spouse’s creation. For example, being laid off from a job might qualify, but choosing not to work would probably not.
The requesting spouse should show that the alimony must be modified because of new and unforeseeable circumstances that arose after the divorce and were not foreseen prior to the final ruling. If the alimony determination was made by the court, and not as a result of an agreement, the threshold will often be a little lower, but the evidence which must be offered will be the same. Unlike in the instance of an amendment after an agreement, a party will usually not have to show that the change in circumstances was unforeseeable at the time of the divorce in the case of a court ordered alimony determination.
Typically, you must solve the issue of alimony with your partner before divorce is finalized. The judge will decide the amount of money to be awarded depending on the situation. Normally, the issue of alimony is raised before divorce proceedings end. However, it is sometimes possible to bring this question up if there have been changes in the circumstances after the case ends, if jurisdiction over alimony was reserved, or the award made was modifiable. One important thing to remember is that only the State which made an original alimony award may modify it — no matter how many years have passed, and even if all parties have left the State of issuance.
Receiving Alimony After Conclusion of Divorce Proceedings
Normally, in Utah, if alimony is not awarded during the divorce, or reserved for the future, it cannot be brought up later; there may be exceptions to this rule. The law concerning modifications of alimony is not well developed; there are few standards, but most cases tend to return to the core concepts of “need” and “ability to pay.” Normally, the party seeking to modify must show a substantial change of circumstance.
Normally, courts are more willing to entertain modification requests when the award was imposed by the court as opposed to agree by the parties. Often, requesting changes to alimony must be supported by unforeseen and fresh changes in a person’s life. These changes must not have been apparent during the divorce proceedings because if they were fairly “anticipated,” they may not be perceived as changes in circumstances.
A recent change to alimony law came in 2019, when as part of a federal tax reform bill, alimony was made non-deductible by payors, and non-includable by recipients, making its tax effect like that of child support.
The Alimony Case
Every alimony case is different. Normally, “fault” considerations do not enter into the calculus, but the costs, risks, and benefits should be discussed in depth with a family law expert before engaging in alimony modification litigation.
Getting Alimony Payments
In Utah, payments in accrued alimony that are due and unpaid are automatically “judgments” as a matter of law.
Normally, they are subject to the six-year statute of limitations, however, if the payments do not arrive, it is far better to seek their collection quickly rather than waiting years to do so. Although the court will look into many factors, there are some things you can do to increase your chances of winning the case. Almost always, the income history and expected future of both parties is critical to the decision. Like most things, it is better to do it right the first time than to try to fix it after the fact, so the best way of not sweating an alimony modification post-divorce is to calmly, intelligently, and diligently negotiate the alimony issue during the divorce proceeding. When that can’t be done, we can go over your relative chances of successfully changing an order that was not fair when entered, to which became unfair through post-divorce events.
How Is the Amount of Alimony Determined?
Unlike child support, which in most states is required according to very specific monetary guidelines, courts have a broader discretion in determining whether to grant spousal support.
The Uniform Marriage and Divorce Act, on which many states’ spousal support statutes are based, suggests that courts consider the following factors in making decisions about spousal support awards:
• The age, physical condition, emotional state, and financial condition of the former spouses;
• The length of time the recipient may need for education or training to become self-sufficient;
• The couple’s standard of living during the marriage;
• The length of the marriage; and
• The ability of the payer spouse to support the recipient and still support himself or herself.
How Does Alimony Operate?
There are different types of alimony payments that can be ordered by the court. For instance, if an alimony is ordered by the court, it can be in the form of a lump-sum payment, a property transfer, or periodic monthly payments. Periodic alimony awards are the most common and require one spouse to pay a certain amount to the other each month. The other spouse is usually the one that does not earn or is the spouse that needs to be financially supported. Next, the lump-sum alimony awards and alimony in the form of a property transfer are generally non-modifiable, meaning they cannot be changed later and cannot be terminated or undone. For a periodic or monthly alimony award there will be an end date set by the judge, or it may terminate when one of the following events occurs: The supported spouse remarries; the supported spouse cohabitates; either spouse dies or; A significant event occurs (paying spouse’s retirement) such that a judge determines that alimony is no longer necessary.
As with many issues in your divorce, you and your spouse can reach an agreement about the amount and length of time the alimony will be paid. But if you are unable to agree, you will need to file a formal notice with a court requesting alimony. After reviewing your case, the court will schedule a hearing and after the hearing, a judge will set the conditions for you. It is important to keep in mind that completing an alimony hearing or trial will be costly for you in terms of time and money.
What Are the Divorce Alimony Rules?
If you are the spouse requesting the support, the question of whether you qualify for alimony is usually determined by taking into account your own income or ability to earn if you are not currently employed.
However, this is not necessarily what you are earning at the time you go to court, but it represents your earning potential.
For instance, if one spouse is trained as a medical doctor but took several years off to care for children and support the other spouse’s career, a judge will examine that spouse’s future earning potential. The spouse may need initial support to reenter the workforce, but not a long-term alimony award.
Following a divorce, you may also be required to make some changes in your life and work. For instance, if you have a part-time job that does not pay well, you may be required to attempt to find full-time employment in a higher-paying field. Courts can hire reporters to ensure that there is a good faith employment search and what the earning capacity of that spouse would be in the workforce.
How Do I Enforce an Alimony Award?
A spouse who is ordered to pay alimony in a divorce will need to make the payments when they are due. Alimony starts as soon as a divorce order requiring it is signed by the judge. A spouse who fails to make the required alimony payments can be held in contempt of court. This means the supported spouse can file a show cause action with the court against the spouse refusing to make alimony payments.
The court will set a hearing to determine the reason for payment delinquencies. Family law courts have various tools from their resources to enforce alimony payments. Therefore, the spouse not making the payments in accordance with the divorce decree could face fines and penalties.
When Should I Contact an Attorney?
If you are receiving spousal support or think that you may qualify, it may be useful to reach out to a local family attorney to consider what your options are for proceeding forward. Your attorney can provide you with advice, support, and representation for your claim.
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