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LADY LAWYER
LADY LAWYER, Family Law Attorney
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Experience:  Family Law Attorney
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I would like to request advice on Utah Divorce. Initially

Resolved Question:

I would like to request advice on Utah Divorce. Initially two areas of concerns are:

Alimony

Division of property
Submitted: 1 year ago.
Category: Family Law
Expert:  LADY LAWYER replied 1 year ago.

LADY LAWYER :

Hello, Thanks for choosing Justanswer.com! I look forward to helping you today.

LADY LAWYER :

What are your questions regarding alimony and division of property in a Utah divorce please?

Customer:

The petitioner in the divorce creed is requesting substantial amount of alimony, in addition to required child support. What suggestions can you offer for the commissioner to waive alomony?

LADY LAWYER :

The award of alimony depends on many things. Let me pull the statute so we can go over them. One moment, please.

LADY LAWYER :

Here is the full statute on alimony:

LADY LAWYER :

(8) (a) The court shall consider at least the following factors in determining alimony:


(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.


(b) The court may consider the fault of the parties in determining alimony.


(c) As a general rule, the court should look to the standard of living, existing at the time of separation, in determining alimony in accordance with Subsection (8)(a). However, the court shall consider all relevant facts and equitable principles and may, in its discretion, base alimony on the standard of living that existed at the time of trial. In marriages of short duration, when no children have been conceived or born during the marriage, the court may consider the standard of living that existed at the time of the marriage.


(d) The court may, under appropriate circumstances, attempt to equalize the parties' respective standards of living.


(e) When a marriage of long duration dissolves on the threshold of a major change in the income of one of the spouses due to the collective efforts of both, that change shall be considered in dividing the marital property and in determining the amount of alimony. If one spouse's earning capacity has been greatly enhanced through the efforts of both spouses during the marriage, the court may make a compensating adjustment in dividing the marital property and awarding alimony.


(f) In determining alimony when a marriage of short duration dissolves, and no children have been conceived or born during the marriage, the court may consider restoring each party to the condition which existed at the time of the marriage.


(g) (i) The court has continuing jurisdiction to make substantive changes and new orders regarding alimony based on a substantial material change in circumstances not foreseeable at the time of the divorce.


(ii) The court may not modify alimony or issue a new order for alimony to address needs of the recipient that did not exist at the time the decree was entered, unless the court finds extenuating circumstances that justify that action.


(iii) In determining alimony, the income of any subsequent spouse of the payor may not be considered, except as provided in this Subsection (8).


(A) The court may consider the subsequent spouse's financial ability to share living expenses.


(B) The court may consider the income of a subsequent spouse if the court finds that the payor's improper conduct justifies that consideration.


(h) 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.


(9) Unless a decree of divorce specifically provides otherwise, any order of the court that a party pay alimony to a former spouse automatically terminates upon the remarriage or death of that former spouse. However, if the remarriage is annulled and found to be void ab initio, payment of alimony shall resume if the party paying alimony is made a party to the action of annulment and his rights are determined.


(10) Any order of the court that a party pay alimony to a former spouse terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person.

LADY LAWYER :

As you can see, there are many things that the commissioner will look at.

LADY LAWYER :

You cannot give them reasons not to award alimony besides negating the things listed in the statutes.

LADY LAWYER :

If your ex doesn't meet the criteria, she doesn't get it. Is she does, she can be awarded alimony.

LADY LAWYER :

How long were you married and are there any children?

Customer:

Married 17 years

Customer:

2 children

LADY LAWYER :

Okay, well I can tell you that just based on those facts, the commissioner is probably going to award it.

LADY LAWYER :

You can summarily argue against it by using the statute to your advantage as far as whether she is able to work and earn a living, but generally, the court is going to at least award temporary or rehabilitative alimony if you can afford to pay it and she is making much less than you or has no income.

Customer:

Combined child support and alomony requests exceed my net income. Can respondent be forced to sell a home when the title is in both spouses names and forced to pay combined alimony and child support in excess of 50% of base pay?

LADY LAWYER :

I see. Child support can be upwards of 75% of your income; however, no order would be issued with both child support and alimony exceeding the 75% mark. A house cannot be ordered to be sold in order to cover child support and alimony payments. This is maritial property and the proceeds cannot be put towards the final award of alimony or child support.

Customer:

Can inherited items brought in during the marraige be sold to help pay off debts if the alimony and child support exceed the recipients ability to pay the required amount?

LADY LAWYER :

No, definitely not.

LADY LAWYER :

Generally, when you see a party asking for alimony and child support in excess of what the other party makes, it is being used as a bargaining chip. In other words, the spouse is using the high amount to get something else they want and will only back down off that amount if the other party starts giving them something as a trade-off.

LADY LAWYER :

This is a classic move by divorce attorneys or spouses otherwise savvy on the issue.

LADY LAWYER :

However, if it is taken in front of the commissioner, they don't get what they are requesting.

LADY LAWYER :

Unfortunately, many people don't know that and end up agreeing to all kinds of things before it even goes in front of the commissioner in order to bring down the amounts of the alimony and chils support.

Customer:

So child support is awarded based on Gross income. What would you suggest to offer the court in the way of alimony?

LADY LAWYER :

I would have to know many more things to answer that such as your income, her income, and then go over all the points of the statute with you to see what counts for her and what counts against.

LADY LAWYER :

Have you used the Utah Child Support Calculator yet to see what you might be paying there?

LADY LAWYER :

You can use that here as Child Support will always be calculated first, before spousal support: https://orscsc.dhs.utah.gov/orscscapp-hs/orscscweb/action/public/custodyWorksheet/show

Customer:

Yes, it is stated to be $1,100.00. With a request of $600.00 alomony and about 100.00 for requested life insurance policy for the pitiioner, it would exceed 50% of net income. After paying about $1500.00 in mortgage, utilities, transportation to and from work, this would exceed my ability to pay this request.

LADY LAWYER :

And that is all you have to show the court: that you cannot pay this amount because you will not have enough money to pay your own bills.

LADY LAWYER :

She will not be granted this amount, so that it creates a hardship for you. I would offer $300, inclusive of the insurance policy.

LADY LAWYER :

And I would ask for it to be rehabilitative, that is, if she is not working, she needs to look for work and if she is working, it will only give her a set amount of time to look for another job, take more hours, look for a roommate or family member to move in to help with the bills, etc.

Customer:

Ok! Should I attach parts or all of the stipulation for you to review? Perhaps you could offer other suggestions. I would request that it be confidential.

LADY LAWYER :

As long as you realize that I am doing this for informational purposes only, yes. I cannot represent you. I will lock up the post after we are done for privacy, but as far as "attorney-client privilege" that does not exist here.

Customer:

Ok! I will attach the pitition and have reviewed for information purpose only!

LADY LAWYER :

I do need to leave the office to go home though, lol. So I can look at it when I get there, if that's okay. Should be about an hour?

Customer:

Thats fine.

LADY LAWYER :

Okay, very good. Please attach when you can and I will review and make informational comments. Thanks!

LADY LAWYER :

Talk to you soon!

Customer:

In accordance with the Parenting Plan, the parties shall be awarded joint


legal custody of the minor children of the parties. Pursuant to Utah Code Ann. § 30-3-


10.1, the term joint legal custody shall mean “the sharing of the rights, privileges, duties,


and powers of a parent by both parents”. In the event that the parties are unable to


reach an agreement relative to the minor children, Petitioner shall have the final


decision making authority.


9. Petitioner shall be awarded primary physical custody of the minor children


subject to Respondent’s reasonable rights of parent-time with the minor children as


described more fully in the Parenting Plan.


Petitioner is currently working on a part-time basis. For purposes of


calculating child support and alimony, Petitioner shall be imputed a gross monthly


income of $1,257.


11. Respondent is currently employed on a full-time basis and earns gross


income in the amount of $5,217 per month.


CHILD SUPPORT AND RELATED PROVISIONS


12. Pursuant to the child support obligation worksheet attached hereto as


Exhibit A, commencing April 2013, Petitioner shall be awarded base child support from


Respondent in the amount of $1,100 per month and continuing each month thereafter


until M.S.A attains the age of eighteen (18) years and graduates from high school with


his regular class, if later, or otherwise becomes emancipated, at which time child


support for K.D.A. shall be recomputed given the then financial circumstances of the


parties and the then child support obligation tables. Due to K.D.A.’s special needs,


mental incapacity, and developmental handicaps, child support for K.D.A. shall continue


each month thereafter until she reaches the age of twenty one (21) years in accordance


with Utah Code Ann. § 15-21-1, at which time child support will terminate


16. Respondent shall maintain and pay for medical and dental insurance


coverage for the benefit of the children of the parties for so long as a child may be


covered under the insurance policy.


17. The parties shall equally pay any out-of-pocket medical, dental,


orthodontic, mental health, or optical costs including co-payments, deductibles, and


uninsured costs incurred for the benefit of any of the children of the parties while the


child is covered under Respondent’s insurance policy.


18. If a party incurs medical or dental costs for a child, that party shall provide


written verification of the cost and payment of such to the other party within 30 days of


payment. The other party shall make reimbursement within 15 days of the written


verification being presented.


19. The parties shall equally pay any employment related child care costs.


20. The parties shall discuss in advance and agree on any extra-curricular


activity in which the minor children may participate if the activity affects the time the


minor children are with either parent and if each party will participate in the cost of the


activity. For such agreed upon extra-curricular activities, each party shall pay one half of


the cost.


21. The parties shall equally pay the cost of registering the minor children for


school including book, lab, yearbook, activity, and similar types of fees.


ALIMONY AND RELATED PROVISIONS


22. Commencing April 2013, Petitioner shall be awarded alimony from


Respondent in the amount of $600 per month and continuing each month thereafter


until the earliest of the following events to occur: (i) Petitioner’s death; (ii) Respondent’s


death; (iii) Petitioner’s remarriage or cohabitation with a person as defined by law; (iv)


the expiration of a term no longer than four years from the date of entry of the Decree of


Divorce; or (v) further order of the Court modifying or terminating alimony based on a


substantial change in circumstances.


23. Respondent shall pay his alimony obligation in no more than two equal


installments payable no later than first and fifteenth days of each month.


24. Each party shall be responsible to maintain his or her own medical and


dental insurance coverage and each shall be responsible for his or her own uninsured


medical and dental costs.


25. Respondent shall maintain a life insurance policy on his life with a death


benefit in the amount of $300,000.00 naming Petitioner and the children of the parties


as the beneficiaries thereof during the period of time that Respondent is liable for any


amount under the terms of this Agreement.


PROPERTY AND DEBT DISTRIBUTION


26. During their marriage, the parties acquired certain real and personal


property which shall be divided between the parties as described below. During their


marriage, the parties incurred certain debts and obligations which shall be allocated


between the parties as described below. The party assuming a particular debt or


obligation shall indemnify and hold the other party harmless therefrom


Petitioner shall be awarded the residence


with a value of approximately $104,754 subject to


Petitioner assuming the mortgage in the amount of approximately $74,754 resulting in


equity of approximately $30,000. Respondent shall sign and deliver a quit claim deed


to Petitioner relative to the


Within sixty (60) days of the signing of this Agreement, Respondent shall


satisfy the entire balance of the home equity line of credit on the Residence which had a balance of $2,011 at the time of parties’


separation on October 1, 2012 an now has a balance of approximately $8,700.


Respondent shall be awarded the marital residence (I am currently occupying the resident home) subject to Respondent assuming and


paying the mortgage encumbering the residence. The parties agree that any equity in


the Residence is minimal. Petitioner shall sign and deliver a quit claim deed


to Respondent relative to the residence homewithin thirty (30) days of the entry of


the Decree of Divorce.


33. Petitioner has no retirement accounts. Respondent’s retirement accounts


including his Federal Employee Retirement System account and Thrift Savings Plan


shall be valued at or near the date of the entry of the Decree of Divorce and divided


equally between the parties. A Qualified Domestic Relations Order shall be entered as


necessary.


34. The marital portion of Respondent’s defined benefit plan through the APS


Air National Guard shall be equally divided between the parties applying the Woodward


formula using the date of marriage and the date of the entry of the Decree of the


Divorce as the cutoff dates. A Qualified Domestic Relations Order shall be entered as


necessary.

Customer:

35. Petitioner shall be awarded her REIC shares.


36. Each party shall be awarded his or her clothing and personal effects.


37. The parties shall equitably divide their furniture and furnishings and other


personal property. If the parties are unable to agree upon an equitable division, the


parties shall exchange a proposed distribution list of the property and participate in


mediation to reach an agreement. The mediator shall make a final division of the


property if the parties are unable to agree to a division. The parties shall equally pay the


fees of the mediator.


38. Each party shall be awarded as his or her separate property, including


property owned prior to the marriage, property acquired by gift, devise or inheritance, or


as a gift from the other party during the marriage.


39. The parties have no joint marital debt except as set forth herein.


40. The parties shall equally assume and pay any joint marital debt or


obligations not provided for in this Agreement.


41. Each party shall assume and pay his or her debts and obligations incurred


since the time of the separation of the parties, and indemnify and hold the other party


harmless therefrom.

Customer:

Item 33. Petitioner did contribute money from retirement. Item 25: I would question this to be mandated by the court. We joint own a rental property. It is suggested she be awarded the entire amount. Item 26: I would request and equall division of the property sale. If you could comment on these specific items based on the information on the stipulation, that would be fine and will close and make payment. Thanks!

Customer:

Perhaps you could suggest a proper financial and property offer that I could provide to the court.

LADY LAWYER : How old are your kids?
LADY LAWYER : And what are the limitations of your child with challenges? Is she in school full time? Is there anything preventing your wife from working full time? If she wanted extra hours in her current profession, could she get them?
Customer:

She has mental disability, is in school full time ( jr.high) she is working for her brother in his business but has claimed no income till August. I believe she could make about 450./ month 20 hours/week at min. wage. She could likely obtain more hours.

Customer:

Ages 12 and 14

LADY LAWYER : You are probably away from your computer. I will check back in later to see if you have answered. Thanks!
Customer:

Corection above

Customer:

Daughter is mentally disabled. Wife is working for her brothers business. Daughter is likely elgible for SSI with parent that is claiming physical custody. I belive this benefit would help to reduce my alimony requirement if indeed does qualify. I'll check back in 23 hours for your suggestions. Thanks!

LADY LAWYER : Hi there.
Customer:

Hi

LADY LAWYER : First time I have been able to reply to you today.
Customer:

Thats fine

LADY LAWYER : You're correct about SSI eligibility for your daughter and yes, it would lower your CS payments. You need to have your wife's attorney (as it appears you do not have one?) put in the divorce agreement that she will apply for SSI for your daughter.
LADY LAWYER : Also, I would simply lower the amount you will give her for alimony by $300 and do not agree to the LI policy. Or lower to $200 and agree to the LI.
LADY LAWYER : Also, the general rule is one month of support for every year married. So you are looking at 17 months, not 4 years.
LADY LAWYER : That is all I would offer at this time. It is fair and reasonable under the circumstances and the court is likely to agree with you if you end up having to take it to trial.
Customer:

Actually I do have an attorney. I discussed the SSI option at mediation. My wife said she looked into it and said she had too much money to qualify. However if that money was spent on attorney fees, I will propose it again in the decree.

Customer:

LI is?

Customer:

Could you clarify rule of support? I was informed at mediation that the alimony could go to 17 years. It was suggested that I turn over the rental house value to her ($30,000). I anticipated equall division of property. This was an atempt to decrease the years to 4 at a higher monthly amount.

Customer:

And before ending, what would your suggestion be regaurding life insurance policy. Can a court mandate this?

LADY LAWYER : Life Insurance
LADY LAWYER : Yes, a court can mandate it, but what a court is not supposed to do is to make it a hardship on you in order for you to keep your ex spouse living in the same manner they are accustomed to. From what you are telling me, that will happen if you agree to the current terms as proposed.
LADY LAWYER : It can go to 17 years, but as a generality, one can at least expect one month for every year married. They are asking for 4 years, I would start with 17 months.
LADY LAWYER : And yes, often times a party will pay more as far property division in order to lower proposed alimony but you shouldn't let your attorney talk you into that if the alimony proposed is going to create a hardship for you.
Customer:

Ok!

Customer:

Any other suggestions based on parts of the stipulation?

LADY LAWYER : Everything else is pretty standard. Whether your wife thinks your little girl qualifies or not though, it should be in the decree that she has to apply. Some of your wife's income and some of your child support will be "deemed" towards your child in order to determine SSI, but from what you've told me, she still may qualify.
Customer:

Ok! Thanks for your advice. I'll contact you in the furture If I have other questions or concerns.

LADY LAWYER : That sounds good, it was my pleasure helping you!
LADY LAWYER, Family Law Attorney
Category: Family Law
Satisfied Customers: 6531
Experience: Family Law Attorney
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