Interviewer: What will happen in terms of alimony? Is it called spousal support or alimony in Utah?
Danielle Hawkes: Spousal support is what we call it before the divorce decree is entered. Once the divorce decree is entered it’s called alimony. They are taxed differently so we are careful about how we use them.
Interviewer: What are the main factors that go into how much one spouse will pay the other?
Danielle Hawkes: Basically, we calculate alimony based on the standard of living during the marriage. Each spouse will disclose to the other spouse their need and their income. If one spouse cannot meet their need, the court will use a calculation to have the other spouse help make up the difference. They will not be required to make up the entire difference; however, if they do not have enough extra cash flow. Instead, the couple will basically split the deficit. If there is a deficit, the court will make it so that both parties feel a little bit of the pinch from deficit. It’s unfair for one party to be covering the entire deficit if they cannot. The arguments used in alimony are very complicated and often need to be at the tip of the lawyer’s tongue. This is not an area of law that people should dive into without a lawyer. There are arguments that run both directions for someone that is underemployed, someone that is retiring soon, someone that could go back to school, etc.
Interviewer: Does the length of the marriage factor into how much you pay and for how long?
Danielle Hawkes: Yes. The standard in Utah is that the alimony will be paid the length of the marriage or until the person cohabitates with another person (cohabitation means that they live as if they’re married with another person – this can be argued either way). But there is also something called rehabilitative alimony, which will be alimony for a shorter amount of time. We anticipate this argument in cases involving shorter marriages and/or with younger individuals. Under this theory, instead of ordering thirteen (13) years of alimony for the length of the marriage, they’ll order five (5) years of alimony and expect that party go to school and get to the point where they can support their own need.
Interviewer: A big factor in that would be age, right?
Danielle Hawkes: The three main factors in determining standard or rehabilitative alimony are age, the duration of the marriage, and the person’s skill set.
Interviewer: What if someone is self-employed? How would that change things?
Danielle Hawkes: If someone is self-employed, alimony becomes trickier because they can separate out their business expenses from their income. We also see more fluctuating incomes with those that are self-employed so nailing down the income amount takes some due diligence. In these cases we need to do significant investigation and due diligence to make sure that we are getting to numbers that are fair.
Interviewer: What happens if you’re in an agreement to pay alimony and you lose your job or your income does go down? What can you do?
Danielle Hawkes: You can ask the court to modify your divorce decree because of a substantial change in material circumstances.
Interviewer: Do you see people going back and trying to recapture what they gave up a year or years later in the divorce because of that?
Danielle Hawkes: Yes. Really these are the people who regret not getting an attorney in the beginning. If you file a petition to modify and the court sees that you are trying to fix a mistake that you made in the initial case, the court is not going to allow it. They’ll say that those circumstances were already present and you should have dealt with them in the beginning but didn’t, so carry on.