One of the most common questions asked during initial consultations is: “What about alimony? How does that work?”
It’s a good question. Let me address it for a minute.
Determining alimony is really a function of two things: time and need.
If you haven’t been married long, you really haven’t gotten used to a married lifestyle, so a court is unlikely to award alimony. For instance, if a couple has been married for two years, and both worked before the marriage, then alimony is unlikely. This is because each spouse can easily go back to his or her single life. The length of the marriage is so short it hasn’t really changed much for either spouse.
My rule of thumb is: if your marriage is less than four years, it will be very difficult to obtain alimony. Four or five years, it really depends on the circumstances. More than five years, it’s much more likely to end up with an alimony award.
Also, alimony can really only last for the length of the marriage. In other words, if you were married for six years, the longest you could expect to pay or receive alimony is six years. So, that’s time, now need.
A spouse must show need in order to receive an alimony award. Here’s how Utah courts normally calculate need.
First, you look at the spouse who makes the least amount of money and determine what his or her income is (income is really any money coming in from any source) and what the reasonable monthly expenditures are (e.g., debts, mortgage, daycare, food, etc.). If that spouse runs in the red (i.e., more goes out than comes in), then there is a need for alimony.
Second, you do the same calculation for the spouse who makes more money and you see if that spouse has more money coming in than going out. If so, then that spouse has the ability to pay alimony. If one spouse has a need, and the other spouse has the ability to pay, then an alimony award is likely.
Here is an example illustrating how alimony might work. Alice and Tom have been married for seven years. They have one child, Matthew. Alice works and makes $15 per hour. Tom works and makes $25 per hour. When you look at Alice’s net monthly income, it’s about $2100 per month. Her reasonable monthly expenses are calculated to be $3100 per month. (I’m making up numbers here for the sake of the example.) Tom nets about $3600 per month from his job. His reasonable monthly expenses will be about where Alice’s are, $3100 per month. This means Alice has a need of $1000 per month, and Tom has the ability to pay of $500 per month. So, Alice would be awarded $500 in alimony for up to seven years.
(Note: Very often there is simply not enough money to go around in divorce, so alimony awards are capped by a spouse’s ability to pay, even if need is greater than the ability to pay.)
What I’ve described above are some rules of thumb and the most common method of calculating alimony. Alimony can be complicated and is really pretty fact dependent, so use what I’ve written as a general guide map. If you want hard, realistic alimony projections, you’ll need to get down the nitty-gritty numbers.
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If you find yourself facing a divorce, please call 801.685.9999 for a legal in-person consultation, or use our online scheduling tool.
Finally, for your review, here is Utah Code, Section 30-3-35(8), which discusses alimony calculation principles:
(8)
(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;
(iii)
the ability of the payor spouse to provide support;
(iv)
the length of the marriage;
(v)
whether the recipient spouse has custody of minor children 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 thereof.
(c)
“Fault” means any of the following wrongful conduct during the marriage that substantially contributed to the breakup of the marriage relationship:
(i)
engaging in sexual relations with a person other than the party’s spouse;
(ii)
knowingly and intentionally causing or attempting to cause physical harm to the other party or minor children;
(iii)
knowingly and intentionally causing the other party or minor children to reasonably fear life-threatening harm; or
(iv)
substantially undermining the financial stability of the other party or the minor children.
(d)
The court may, when fault is at issue, close the proceedings and seal the court records.
(e)
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 (8)(a). However, the court shall consider all relevant facts and equitable principles and may, in its discretion, base alimony on the standard of living that existed at the time of trial. In marriages of short duration, when no children have been conceived or born during the marriage, the court may consider the standard of living that existed at the time of the marriage.
(f)
The court may, under appropriate circumstances, attempt to equalize the parties’ respective standards of living.
(g)
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.
(h)
In determining alimony when a marriage of short duration dissolves, and no children have 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.
(i)
(i)
The court has continuing jurisdiction to make substantive changes and new orders regarding alimony based on a substantial material change in circumstances not foreseeable at the time of the divorce.
(ii)
The court may not modify alimony or issue a new order for alimony to address needs of the recipient that did not exist at the time the decree was entered, unless the court finds extenuating circumstances that justify that action.
(iii)
In determining alimony, the income of any subsequent spouse of the payor may not be considered, except as provided in this Subsection (8).
(A)
The court may consider the subsequent spouse’s financial ability to share living expenses.
(B)
The court may consider the income of a subsequent spouse if the court finds that the payor’s improper conduct justifies that consideration.
(j)
Alimony may not be ordered for a duration longer than the number of years that the marriage existed unless, at any time prior to termination of alimony, the court finds extenuating circumstances that justify the payment of alimony for a longer period of time.
Call Brown Family Law
If you find yourself facing a divorce, please call 801.685.9999 for a legal in-person consultation, or use our online scheduling tool.
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