As if the emotional toll of divorce weren't enough, the financial aspect can be devastating. A crucial task your Utah divorce lawyer must help you tackle from the get-go is to separate the emotional aspect of the case from the financial one. Let's examine this separation in the context of alimony.
No one relishes the idea of paying their "ex" alimony. No matter how justified your emotions may be, being naïve or ignorant about how Utah law and Utah judges deal with alimony can leave you vulnerable. Bottom-line: If you have been the primary breadwinner in your marriage, and your marriage lasted more than a few years, you will likely be paying alimony. This is because under Utah law, alimony is neither a punishment nor a reward-it is an equalizer. It either equalizes the parties' standard of living enjoyed during the marriage, or it equalizes the financial hardship that both parties will suffer post-divorce.
One common misconception is to think that a Utah judge will not order someone to pay alimony in an amount beyond their ability to pay. For example, they think that, if they have disposable income (earnings in excess of their monthly expenses) of only $300 per month, then the maximum alimony award they will have to pay is $300. This is not true. The legal doctrine of income equalization allows Utah judges, under proper circumstances, to order one of the spouses to pay alimony beyond their ability to pay. (Note: this doctrine does not apply if the paying spouse does not even earn enough to cover basic living expenses like food and shelter.)
Under what circumstances is equalization of income appropriate? Assume wife earns net monthly income of $2,000 from her employment, and she is awarded child support of $500, for a total monthly income of $2,500. Suppose she presents credible evidence that her monthly expenses are $3,500. The court will find that she has a monthly "shortfall" or deficit of $1,000 per month. Now, if the husband makes good money and is able to pay that entire amount each month, wife's alimony award will be no more than $1,000. Utah divorce law is clear that the maximum alimony award a recipient spouse may receive is the amount of his or her "demonstrated need," which in our example is $1,000 per month. (In light of this doctrine, by the way, it is vital to accurately depict your "standard of living" during the marriage.) For this reason, if both spouses worked during the marriage, and made comparable money, chances are neither one will be awarded alimony, since they will both be self-sufficient post-divorce.
However, let's assume husband's net monthly income is $5,000, less the $500 he must pay in child support, for total available income of $4,500. Suppose he proves that his demonstrated need is $4,100 per month. Therefore, he has only $400 in surplus income to meet wife's $1,000 need. Is an alimony award proper, and if so, in what amount?
Under our set of facts, the judge will likely "equalize the poverty" or the monthly deficit of wife and husband. An alimony award of $700 per month leaves both wife and husband a monthly shortfall of $300. Despite the fact that husband only has $400 in disposable income, under our hypothetical (which is similar to several actual Utah divorce cases) he is forced to pay more than that based on the Utah alimony doctrine of income equalization.
Of course, the alimony calculus does not always play out this simply. Other factors and legal principles may come into play, and your Utah divorce lawyer should know how to use them and when. For example, wife may agree to a disproportionate share of the marital property, or a larger piece of the retirement-account pie, "in lieu of"-or in the place of-alimony. Or husband may agree to be accountable for the lion's share of the marital debt in order to avoid an alimony obligation. But if all things are split more or less equally, the alimony analysis will follow along these lines. (Remember, this doctrine only applies to a situation where the "payor" spouse does not earn enough to cover the full amount of the recipient spouse's need.)
Your Utah divorce attorney should be well-versed in this alimony doctrine, its implications for your case, and other legal principles that affect alimony so that, whether you are the payor spouse or the recipient spouse, you can craft the best possible settlement option or trial strategy. Harboring misconceptions about alimony, or letting your emotions cloud judgment regarding how alimony works in Utah, will only exacerbate an already difficult process.
-Jonathan P. Wentz, Senior Associate Attorney at Snow Jensen & Reece (Mr. Wentz practices domestic relations law, among other areas of law, at Snow Jensen & Reece.)