Utah Divorce Code 30-3-3: Award of Costs, Attorney And Witness Fees — Temporary Alimony.
(1) In any action filed under Title 30, Chapter 3, Divorce, Chapter 4, Separate Maintenance, or Title 78B, Chapter 7, Part 1, Cohabitant Abuse Act, and in any action to establish an order of custody, parent-time, child support, alimony, or division of property in a domestic case, the court may order a party to pay the costs, attorney fees, and witness fees, including expert witness fees, of the other party to enable the other party to prosecute or defend the action. The order may include provision for costs of the action.
(2) In any action to enforce an order of custody, parent-time, child support, alimony, or division of property in a domestic case, the court may award costs and attorney fees upon determining that the party substantially prevailed upon the claim or defense. The court, in its discretion, may award no fees or limited fees against a party if the court finds the party is impecunious or enters in the record the reason for not awarding fees.
(3) In any action listed in Subsection (1), 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 and of any children in the custody of the other party.
(4) Orders entered under this section prior to entry of the final order or judgment may be amended during the course of the action or in the final order or judgment.
Temporary alimony or spousal support is an order for support that comes during a divorce, legal separation or even an annulment case after one party has filed such a request with the court. A hearing is set after a motion document called a “Request for Order” is filed with the family court. For these financial motions, it is a requirement that each party file an Income and Expense Declaration to show their respective financial status. Temporary spousal support is usually ordered to “preserve the status quo”, meaning to try and maintain some semblance of what the parties had going during the marriage. The court is granted a significant amount of discretion, or authority, to order or deny spousal support. Temporary spousal support is also called pendente lite spousal support, which means an order made during the pendency of a case.
How Is Temporary Spousal Support Calculated?
Utah courts are allowed to determine temporary spousal support by looking at a “guideline” calculator that most family law attorneys have in their office. The court can look at the guideline calculator if they want (and every judge or commissioner does), but they are not required to look at the calculator. They are required to consider the needs of the supported party and the supporting party’s ability to pay. Those are the only two factors that the trial court judge is bound to consider. Some calculators can be found online, but we would caution against relying on those calculators. The factors that are input into the calculator are extremely important and are the subject of many litigation arguments. We can also save you some time: typically the calculator will say that if the supported spouse has little or no income, temporary alimony will be somewhere between 30-35% of the supporting spouse’s gross income. Obviously, great care has to be taken in making sure the court uses the correct figures when determining temporary support.
Can Temporary Spousal Support Be Modified?
Yes. Temporary spousal support is an order that is made during the pendency of a case based on the payer’s ability to pay and the recipient’s need for money. While there are many other factors that the court can consider when making a temporary alimony order, those are the primary concerns for the court. Generally, orders that are made a part of a judgment are only modifiable based on a showing of changed circumstances. Usually those changes have to be substantial. When a temporary order is made and one party seeks to modify the order, technically they do not have to prove that there has been any change of circumstances warranting a change. Practically speaking, however, a party would not want to bring a motion to modify a temporary order without there being some change of circumstances. The family court judge will not be pleased with motion requesting the same information already ruled on.
Can The Court Use The Guideline Spousal Support Calculator To Determine Permanent Alimony?
No. The statutory and case law is clear that the court is not permitted to review or rely upon the “guideline” spousal support calculator in determining permanent spousal support under Family Code 4320. In fact, family court judges are very careful not to allow either party to submit computer spousal support calculations for consideration because the Court of Appeals will reverse the trial court’s judgment. Many times, there is already a computer calculation for spousal support that is calculated during the pendency of the divorce case for temporary spousal support, which is part of the court record and the court is permitted to review the court file and that document for reference. Even so, most, if not all judges look at the “guideline” formula for temporary spousal support to get an idea about what that number is and to gauge the net income of each party and to gather certain tax information. However, the court is explicitly not allowed to rely on the calculator for determining permanent spousal support.
How Is Permanent Spousal Support Calculated?
Permanent spousal support is not really “calculated” since the court is not allowed to use a calculator. The court is required to list and consider each and every factor to determine the amount and duration of spousal support, if any. Generally, these are the standard of living during marriage, employment, income, earning capacity, health of each party, and so forth. In practice, permanent spousal support judgments are typically slightly lower than temporary spousal support orders.
Difference between Temporary and Permanent Spousal Support
• Temporary alimony is ordered during a case, permanent alimony is ordered at the end of a case.
• Temporary spousal support can be ordered during an annulment (i.e. nullity) case, but permanent spousal support cannot be ordered in an annulment case.
• The judge is allowed to use a computer to determine temporary alimony, but is not allowed to use the calculator to determine permanent alimony.
• The only consideration necessary for temporary spousal support is the supported party’s need and the other party’s ability to pay, while there are about a dozen factors that the court must consider when ordering permanent alimony.
• Temporary spousal support is ordered after a party files a motion (i.e. RFO) for temporary support, while permanent alimony is part of a “judgment” that occurs at trial or upon agreement of the parties.
• Permanent alimony may be factored into the IRS’ “recapture” rules, which means that it may not be taxable income to the recipient and deductible to the paying spouse even though that’s what was intended. These IRS rules look at whether certain agreements between parties may have too much cross-over between alimony and property division, to put it very simply. These types of IRS rules really wouldn’t apply to temporary spousal support.
• Temporary spousal support ends until the court revises the order either by making a new order or after permanent spousal support is ordered. Permanent spousal support might not have an end date attached to it.
Process of Obtaining a Temporary Alimony
First, you need to inform the court that you are in need of a temporary alimony order and file the necessary paperwork with the help of a temporary alimony lawyer in the family court. Once the courts reviewed the financial documents, it may hold hearings for the order. Courts have wide discretion is granting or denying the temporary alimony order. It is crucial to document all the financial materials and collect them as evidence for the hearing. The more clearly you can articulate your financial and marital situation the better the judge can decide on your case.
What Factors do Courts Consider in Awarding Temporary Alimony?
A judge may look to several factors in determining the temporary alimony. These include:
• Length of the marriage;
• Age of the parties;
• Couple’s standard of living throughout the marriage;
• Each spouse’s mental and physical condition;
• The financial needs and financial resources;
• Each spouse’s ability to become self-sufficient through obtaining higher education;
• Each spouse’s contribution to marriage, financial and nonfinancial;
• Is the amount too burdensome on the spouse to meet their own financial means; and
• Ability to work while providing for any dependent children.
Additionally, the courts may look to determine if it was a “no fault” divorce and if there was any agreement on the alimony between the couples. However, laws regarding temporary spousal support vary throughout the states. Courts need to consider the financial capabilities of the spouse to set the temporary alimony amount. Most states require that the divorcing couples file and exchange preliminary financial disclosures. Generally these forms provide sufficient information about each spouse’s financial situation. This includes any assets, debts, income and expenses. Temporary alimony orders may include a temporary award of the marital home. Furthermore, it is within the court’s discretion to award temporary alimony even if the spouse is self-sufficient.
How Are Temporary Alimony Orders Enforced by the Courts?
There are many reasons a spouse may have difficulty paying the court ordered amount of alimony. It could be due to medical, employment or the ability to work issues. After determining the reason for the delay in payment, the couples can come to an agreement to modify the alimony agreement to best serve their situations. However, if your spouse does not have a viable reason and is avoiding the payments, you have the option to get the court involved. The court can order a spouse to make orderly payments for the spousal support. The courts have discretion in imposing fines and in ordering another form of punishment for the spouses that are failing to follow court orders. States vary in the remedies provided to each spouse receiving alimony and some of them include:
• Contempt: Failing to pay spousal support voluntarily can lead to more fines and possible jail time;
• Income Withholding: Courts can order the spouse’s employer to withhold the income check or send it directly to the supporting spouse;
• Writ of Execution: Judge can order a portion of the spouse’s assets to be awarded to the supporting spouse; and
• Judgment and Interest: Courts can also issue money order judgments for large amounts of overdue alimony.
Can Temporary Alimony Orders Be Modified?
Courts can modify the temporary alimony orders based on a showing of changed circumstances. These changes need to be substantial and warrant a modification in the order. The most important consideration for temporary alimony orders, is that the courts determine supported party’s need and the other party’s ability to pay.
How Long Does Temporary Alimony Last?
Temporary alimony ends once the case is completed. In other words it terminates once the divorce is finalized. The purpose of the temporary alimony is to ensure the self-sufficiency of the supported spouse and to allow adequate time needed. However, some temporary alimony orders can carry over to the final judgment of the divorce, transforming into the permanent alimony order. Any family going through a divorce is enduring tough times. The spouses are also faced with bills and expenses for rearing their children.
Should I Hire a Lawyer for Help with Temporary Alimony Issues?
Financial burdens can pile up and create complicated situations for the families seeking divorce. For more information and guidance on how to file for a temporary alimony order or to determine your eligibility, it would be useful to seek out a family law attorney to assist with the process. Your attorney can provide you with advice and representation during the legal process.
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