Alimony, perhaps the most universally hated and feared word in divorce proceedings. Neither party likes to discuss alimony. The paying spouse cringes at the idea of supporting the lifestyle of someone they used to be married to, and the receiving spouse dreads the inevitable fight and snide comments the very word elicits. However, alimony has deep legal roots and has changed over time to minimize its impact on society as well as its applicability in all cases. It may be the case that, overtime, alimony disappears from our society in its entirety.
Alimony began out of the English common law under the necessities doctrine. The necessities doctrine held that a husband had a duty to provide for the necessary expenses of his wife and children and could be held liable for debts entered by his spouse to provide for their subsistence. When a marriage ends, that duty to support does not necessarily extinguish and because divorce is the dissolution of a partnership, there are economic implications that must be addressed. Thus, alimony. The U.S. Supreme Court invalidated gender based alimony in Orr v. Orr, 440 U.S. 268 (1979). This allowed either a man or a woman to seek alimony at the end of a marriage.
Pursuant to Utah Code 30-3-5, when a party is seeking alimony, the court shall consider AT LEAST the following factors:
- The financial condition and needs of the recipient spouse;
- The recipient’s earning capacity or ability to produce income;
- The ability of the payor spouse to provide support;
- The length of the marriage;
- Whether the recipient spouse has custody of minor children requiring support;
- Whether the recipient spouse worked in a business owned or operated by the payor spouse; and
- 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.
See Jensen v. Jensen, 19 P.3d 117, 120 (Utah 2008). These factors all speak to the economic condition of the parties at the time of the divorce and the impact marital sacrifices have made on their ability to earn income.
The court may also consider fault in an award of alimony. Fault would be wrongful conduct during the marriage that substantially contributed to the breakup of the marriage relationship. This would include physical violence, engaging an extra-marital sexual relationship, threatening the life of the other spouse or their minor children, or substantially undermining the financial stability of the other party or the minor children.
The court will generally look to the standard of living, at the time of separation, in determining alimony. In the case of short marriages where no kids were born, the court may instead look to the standard of living that existed at the time of marriage.
Once the court determines alimony is appropriate, they then set a length of time the benefit is to be received. Alimony is intended to be a temporary measure to support a disadvantaged spouse while they attempt to recover from the economic impact caused by the divorce. The length of time this temporary measure lasts is dependent on the length of the marriage. Absent specific court findings and as a result of extenuating circumstances, alimony cannot last longer than the duration of the marriage.
In terminating alimony short of the ordered period of years, unless a court order or decree states otherwise, alimony will automatically terminate upon the death or remarriage of the payee spouse. Alimony will also terminate after the payor spouse establishes with the court the payee spouse is cohabitating with another person.
Because alimony is based upon economic disparity, and our society is moving closer toward an egalitarian, two income household, alimony may die in the future for want of applicability. But for now, alimony remains a remedy available to a divorcing couple.
Each case offers different facts and circumstances and each of the above factors are subjective. This means that even though a judge will be unbiased as he examines the factors, alimony can change significantly on a case-by-case basis. This article provides basic general legal principles and should not be considered legal advice. If you have further questions regarding alimony, you should contact an attorney with experience in family law who can analyze the specific facts surrounding your case and give you advice tailored to your situation.