Spousal support is a court-ordered payment from one former spouse to the other. The award of spousal support does not depend on gender. Rather it depends on whether one spouse is less financially stable because the other spouse has been the primary earner in the family. Whether a person can get spousal support, or alimony, depends entirely on the state in which the person lives. Some states have what is called “spousal maintenance”, but that is generally based on the same principle as spousal support or alimony. As the number of stay-at-home fathers rises and women become primary breadwinners, men are increasingly awarded spousal support.
States vary, but in a divorce judges typically consider the following when determining whether a spouse is eligible for spousal support:
• The length of the marriage;
• The earning potential of each spouse and whether each can keep the same general standard of living as when married;
• The age of the spouses;
• The length of time that a dependent spouse would need to prepare for employment;
• The educational background of each spouser,
• Whether any spouse is disabled and how it affects their earning capacity.
• Whether one spouse stayed at home with the children while the other’s career advanced;
• Whether one spouse sacrificed his or her own education and career opportunities to advance the other spouse’s career.
• Whether the spouse who must pay can support their ex-spouse and still support themselves.
The above list is not exhaustive. Spousal support is awarded on a case-by-case basis. Whether one spouse gets an award of spousal support depends entirely on the facts involved. Usually an award of spousal support is not unlimited. The court may determine a length of time for the spouse who gets the support to get an education and become self-supporting. Usually spousal support ends if the spouse receiving it remarries. Or, it may end if the paying spouse dies, but not necessarily. If a spouse who receives spousal support is not able to become self-sufficient because of age or disability, support may continue from the estate or life insurance proceeds of the paying spouse. The continuation of spousal support may be addressed in the will of the paying spouse.
How Do You Get Spousal Support?
There are a few ways to get spousal support in the event of a divorce. The parties to the marriage can agree upon the award of spousal support before they get married in a prenuptial agreement. In this case, the prenuptial agreement is like a contract that the parties can enforce in court. Another way is for the divorcing parties to agree to an award of spousal support as part of a settlement agreement. Generally speaking, if an agreement is made, the parties can agree for one to receive spousal support on any terms they wish. Most of the time, however, the parties are not able to agree on the subject of spousal support, and in that case the decision will come directly from the judge presiding over the divorce case.
Do Men Face a Gender Bias?
The award of spousal support in divorce cases is based on such factors as those listed above and not on gender. A court’s analysis should be gender-blind; it involves weighing the factors without regard to the gender of the parties.
The primary reason women receive spousal support more often than men is because women have traditionally been the spouses who stay at home to raise the children. Or they may also provide non-financial support that makes it possible for the husband to devote the majority of his time to advancing his career. If the roles are reversed and the male spouse has stayed home to care for the children or otherwise limited his career advancement in order to support his wife’s career, then the male spouse may be awarded spousal support.
If I Have Custody of My Children, do I Automatically Get Spousal Support?
Spousal support is not awarded on the basis of custody of the children. Spousal support is not automatically awarded to one spouse because that spouse has sole custody or primary custody. Spousal support is based entirely on the relative needs of the spouses and not on the terms of custody of the children. Child support is for the children and given to the spouse who has sole or primary custody. Spousal support is specifically for the spouse only.
Understanding and Calculating Alimony in Utah
It’s no surprise that for most couples, a divorce can cause financial instability. To protect under- or unemployed spouses, the court may award alimony, which is a court-ordered payment from a higher-earning spouse to the other during the divorce process and often, for a period after.
Qualifying for Alimony in Utah
Alimony is gender-neutral in Utah, meaning either spouse can request support during the divorce process. When considering a request for alimony, the judge will evaluate the following factors to determine the type, amount, and duration of support:
• the financial condition and needs of the supported spouse
• the recipient’s earning capacity or ability to produce income, including an evaluation of whether the recipient lost work experience or skills while caring for the couple’s children
• the paying spouse’s ability to pay support while maintaining financial independence
• the length of the marriage
• whether the recipient is a custodial parent of a child who requires child support
• whether the recipient worked in a business owned or operated by the paying spouse, and
• whether the recipient directly contributed to the increase in the paying spouse’s income by paying for education or job training during the marriage.
In addition to the above factors, the court can also consider a spouse’s fault (or marital misconduct) which caused the breakup of the marriage. In Utah, “fault” may include adultery, physical abuse or threats to the other spouse or children, or undermining the financial stability of the other spouse. It’s important to understand that the court can’t use alimony to punish a misbehaving spouse, so judges use fault in limited circumstances.
Unlike child support in Utah, there is no formula for judges to use to calculate alimony in a divorce. Instead, judges’ base support amounts on the above factors and any other relevant circumstances in each case. If you and your spouse would like to maintain control over the alimony order, you can negotiate the terms in a settlement agreement and present it to the judge for approval.
The Marital Standard of Living
The purpose of alimony is for both spouses to maintain a lifestyle as close as possible to the marital standard of living. However, as a general rule in alimony evaluations, judges will look to the standard of living existing at the time of the couple’s separation. In other words, if you lived a lavish lifestyle for the first 5 years of your marriage but downsized and lived on a budget for the last 5, the court will use alimony to ensure you can maintain your current budget and lifestyle.
Duration of Alimony
Sometimes judges will award temporary alimony while the divorce is pending. Orders of temporary support terminate when the judge finalizes the divorce. For all other alimony orders, the law prohibits the judge from ordering support for longer than the length of the marriage unless the court reviews the order before the termination date and finds extenuating circumstances that require support to continue.
Terminating Alimony in Utah
Typically, the judge will set an end date for alimony in the original order. However, if the supported spouse remarries or dies, alimony terminates automatically. It’s no surprise that life goes on after a divorce. But, if the supported spouse begins cohabiting (living with) a new partner, the paying spouse can request termination of alimony.
Cohabitation may terminate alimony, but only if you report it to the court and ask for support to end within one year of discovering the cohabitation.
Paying Alimony in Utah
Most alimony payments in Utah are periodic (monthly) and due on the first of every month unless the court orders otherwise. Most judges include an income withholding order for alimony, which directs the paying spouse’s employer to withhold the payments from the employee’s paycheck and forward it directly to the court. If the paying spouse doesn’t have a steady job or is self-employed, the court may order lump-sum payments or payment through property transfer. Lump-sum payments are installments, either one or several over a short period of time. Once you make the final payment, your alimony obligation to your spouse ends.
Property transfers are rare, but helpful in cases where one spouse doesn’t have a steady income but has a significant amount of property that will fulfill the support order.
Modifying Alimony Orders
Unless the support order is non-modifiable, either spouse can request a review and modification (change) of an alimony award if there is a substantial and material change in circumstances after the divorce. For example, if a paying spouse is disabled due to an unforeseen health issue and can’t work, the court may adjust or terminate alimony to ensure that both spouses remain financially stable. If there’s a change in circumstances that makes it difficult for you to pay support, it is important to request a review as soon as possible, and in the meantime, you must continue to pay. Failure to pay support can result in serious consequences, such as contempt hearings, fines, bank seizures, and in the most severe cases, a jail sentence. If your spouse isn’t paying support as ordered, you can file a formal petition with the court asking for help enforcing the order.
Taxes and Alimony
If you finalized your divorce on or before December 31, 2020, you can deduct your alimony payments, and your spouse must report and pay taxes on the income. However, for divorces on or after January 1, 2021, changes to the tax law eliminate both the tax deduction benefit and reporting requirements for alimony.
Divorcing couples should consider the tax ramifications for both spouses before finalizing the divorce. If you’re unsure how the new tax law impacts your bottom line, you should speak to an experienced tax and divorce attorney near you. If your marriage ended with you or your spouse slamming the door, and you earn more than your spouse, you will most likely be ordered to pay your spouse alimony in case of a divorce.
How Does Alimony Work In Utah?
If you want to avoid paying alimony, also known as spousal support, but it’s clear from your circumstances that you will be ordered to pay alimony, then there’s most likely no legally and equitably valid ways you can prevent having to pay alimony. That is because Utah laws are very strict when it comes to ordering alimony when one of the spouses has the ability to support himself or herself financially month to month and has some surplus money to share with his/her spouse. That, of course, if the other spouse can prove that he or she is unable to support himself/herself financially month to month. Despite this, payor spouses (the spouses ordered to pay alimony) still look for legal ways to avoid paying spousal support. And more often than not, their attempts to avoid being ordered to pay alimony to come up empty. This is especially true if the spouse by an experienced alimony attorney in Salt Lake City or elsewhere in Utah.
Illegal And Legal Ways To Avoid Paying Alimony In Utah
More likely than not, a spouse may attempt to either falsely appear impoverished or even voluntarily impoverish himself or herself (by voluntarily quitting their job shortly before or after divorce) in order to avoid paying alimony. But such attempts to avoid paying spousal support are illegal in Utah and will not get you far.
Still, there might be legal options available to avoid having to pay alimony to your spouse in Utah:
• The financial condition and needs of your spouse do not meet the required threshold under Utah law;
• Your spouse’s earning capacity allows him or her to earn a living and produce income on their own;
• Your spouse’s work is not affected by her or his need to care for your children;
• You do not have the ability to provide alimony (there is no surplus money in your month to month income);
• You were not married for very long;
• Your spouse does not have custody of the child requiring support;
• Your marriage ended because of your spouse’s fault (having an affair with or engaging in a sexual relationship with another person, knowingly and intentionally causing, threatening, or attempting to cause physical harm to the other party or your child, substantially undermining the financial stability of you or your family during the marriage); or
• Your spouse is cohabiting with another person, who has the ability to satisfy your spouse’s financial needs.
If you are thinking of getting a divorce or in the process of getting a divorce and believe that you should get spousal support, you should definitely consult an experienced Utah family law attorney.
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