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ALIMONY DE-MYSTIFIED

Posted by: In: Newsletter Archive 25 Mar 2015 Comments: 0

BY LORIE D. FOWLKE

(Please understand that the answers to these questions are general in nature and may not cover every individual situation.)

There are many questions, confusion and urban legends about alimony. The theories range from “I am entitled to alimony because he was such a jerk,” to “she had an affair so I shouldn’t have to pay alimony,” to “courts don’t order alimony anymore, do they?” The short answers to those specific scenarios are: (1) alimony is not to punish someone; (2) alimony is based primarily on finances, though fault can provide some leeway; and, (3) yes, Utah courts do order alimony when the situation warrants.

The Utah statute specifically provides for alimony when the income of one spouse has insufficient for their needs, that spouse is unable to meet their needs through their best efforts, and the other spouse has some ability to pay. §30-3-5(8) Utah Code (2014). The statute also says that the court should consider the standard of living at the time of separation in ordering alimony. Of course this criterion allows for many variables. What if the receiving spouse has not worked for many years? What if the other spouse barely has enough for their needs, let alone the other spouse?

The problem in most cases is that there is not enough money for two households based on the income that originally supported one. This scenario was recently addressed by the Utah Court of Appeals in the case of Kidd v. Kidd. 753 UAR 26 (filed 1-30-2014). In that case the wife was unemployed. However, the court “imputed” income to her of $9/hour or $1,560/month because she had worked at Walmart four years ago at $9.80/hour for 35 hours a week. The wife also suffered from depression which made it difficult for her to maintain employment. Court found that the wife did not have sufficient income for her expenses and that the husband had more than his monthly expenses. However, the excess funds the husband had were not enough to meet the wife’s needs. Therefore, the court found that it was “appropriate to equalize the parties’ standards of living” by having the Husband “help provide for Wife’s needs.” The Court accomplished this goal by adding the parties’ income together, dividing it in half, subtracting out the income imputed to Wife, and awarding her the rest, in alimony.

The Husband appealed and complained that the appellate court did not show wife had need for alimony and should not have ordered husband to pay alimony. The appellate court reviewed the trial court’s process in determining the alimony and upheld the lower court’s decision. Husband claimed that wife’s actual living expenses at the time of trial were much lower than stated and she did not really need the alimony that was awarded. The appellate court recognized that wife’s expenses were projected, as she was living with relatives at the time of the divorce; however, wife explained she was waiting for the divorce settlement in order to purchase a new home. The Utah Court of Appeals recognized that this was reasonable and that it was appropriate to equalize the income so that both parties would have the same standard of living after the divorce. Wife’s lower expenses were temporary and the Court was bound to consider the standard of living during the marriage. The Court noted that “when the parties are unable to maintain the standard of living to which they are accustomed during marriage, the shortfall is equitable shared.” Income equalization is sometimes called “equalization of poverty.” However it is called, it is recognition that there is not enough money for two households, and that this is a process the Utah Courts have upheld.

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