Debt in your Divorce – Spousal Support – Arnold & Wadsworth

Question: How does spousal support work?

Question Detail: My husband and I have been married for two years and separated (not legally) for 2 months. All of our debt is under my name (car loan and credit cards) since my credit was better than his, but he was the one making the money. Will he have to continue making the payments on the debt, will this be included on spousal support, or are those two different issues? He was also paying for everything else, rent, car and health insurance, groceries, etc. He basically supported both of us. Am I entitled to spousal support? I am working part time (not enough to support myself) and always on the look for a better job, but what do I do in the meantime? We are on agreement that he will continue to pay the bills, but how can I protect myself (and my credit) if he changes his mind?

ANSWER:

Alimony (sometimes called “spousal support”) is a court ordered allowance that one spouse pays to the other spouse for maintenance and support while they are: 1) legally separated, 2) while they are in a matrimonial lawsuit, or 3) after they are divorced. Alimony payments, regardless of when they are received, are taxable income to the receiving spouse.

The primary purposes of alimony are: (1) to get the parties as close as possible to the same standard of living that existed during the marriage; (2) to equalize the standards of living of each party; and (3) to prevent the recipient spouse from becoming a public charge.[1] As one of the primary purposes of alimony is to prevent a spouse from becoming a public charge, expenses like health insurance and other subsistence expenditures are given much deference by the court.

Some of the factors considered when determining what constitutes a reasonable award of support include: (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 allowing the payor spouse to attend school during the marriage.[2]

In any regard, 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.[3]

One recommendation would be to put whatever agreement you and your spouse may have in writing (sometimes called “private ordering”). A written agreement, even if lacking enforceable consideration, may help a court stipulate alimony as part of a divorce decree.

Aside from private ordering there are two different avenues that could be potentially pursued to seek spousal support in this situation. The first is by obtaining a Decree of Legal Separation and the second is by filing for a petition for divorce.

A decree of legal separation may be obtained by filing a motion for temporary separation order and, in the judge’s discretion, may contain spousal support in a similar way to a divorce decree. Temporary orders (or legal separations) are valid for one year from the date of the hearing, or until a petition for divorce is filed.[4]

Once a petition for divorce is filed the court may order a party to provide money, during the pendency of the action, for the separate support and maintenance of the other party, this is called temporary alimony. [5]

Summary:

Courts have broad discretion in making alimony awards and determining what other payments would be requisite in your particular situation.[6] Alimony is a very flexible tool used by the courts and takes into account several factors (some of which are listed above) in determining what should and should not be included. Any unique circumstances, like car loans and credit card debt, will be analyzed by the court and included in a divorce decree or sorted out as part of the mandated mediation session(s).[7]


[1] Jensen v. Jensen, 2008 UT App 392, 197 P.3d 117

[2] Utah Code Ann. § 30-3-5 (West)

[3] Utah Code Ann. § 30-3-5 (West)

[4] Utah Code Ann. § 30-3-4.5 (West)

[5] Utah Code Ann. § 30-3-3 (West)

[6] Johnson v. Johnson, 855 P.2d 250, 251 (Utah Ct. App. 1993)

[7] Utah Code Ann. § 30-3-39 (West)

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