Unfortunately, after separation and divorce it is practically impossible for both spouses to maintain the same lifestyle and standard of living they once had. Taking one household and dividing it into two households almost always means that both parties will experience a decline in lifestyle for a period of time. The purpose of awarding alimony is to prevent the receiving spouse from becoming a public charge and to maintain, if possible, a standard of living close to what both parties enjoyed during the marriage. Cox v. Cox, 877 P.2d 1262 (Utah App. 1994). It seems that Utah courts make an effort to leave both parties in loosely equal circumstances, but it is highly controversial whether or not this is true over the long term.
There are numerous factors that the court considers in looking at whether to award alimony. Unlike determinations of child support, there is no formula for alimony in Utah.
In considering i) whether to award alimony and ii) determining the amount, the court will consider the length of the marriage, the financial condition and needs of the receiving spouse (ability to produce income, amount of historical income, education, debts, monthly expenses, assets), the ability of the payor spouse to provide for himself/herself, and the payor spouse’s ability to have residual income for spousal support. Notably, alimony being paid by wives to husbands is on the rise.
The court may (but is not required to) consider fault when awarding alimony. Utah Code Ann. § 30-3-5(7); Cox v. Cox, 877 P.2d 1262 (Utah App. 1994). “Fault” can also be raised as a defense to having to pay alimony, not only the basis for claiming alimony. This is rarely done. Fault may come up in domestic violence cases, or in instances of drug dependence or child abuse, but generally the court looks at alimony as a financial analysis and does not want to get into allegations blaming one party or the other for the failure of the marriage. Many parties have the mistaken belief that “fault” means that alimony is awarded when the other party commits adultery. Adultery is rarely, if ever, the basis for “fault-based alimony” in the experience of this firm.
Alimony is one of the least predictable areas of family legal practice. The courts exercise a high amount of discretion and the factors that are available for analysis are numerous and complex. Modification of alimony is also complex and worthy of a separate blog entry. In a nutshell, both parties should remain open and flexible in negotiating alimony as it is highly unpredictable and both parties share risk in litigating the issue.