Barbara Sadler: Does Adultery Affect Alimony?

Alimony means payments for the support and maintenance of a spouse, either by lump sum or on a continuing basis. Alimony is paid by the supporting spouse to the dependent spouse. The general rule is that a spouse is dependent when he or she makes less money than the other spouse. Technically, a dependent spouse is a spouse, whether husband or wife, who is actually substantially dependent upon the other spouse for his or her maintenance and support or is substantially in need of maintenance and support from the other spouse. Alimony is to be paid in such amount as the circumstances render necessary, having due regard to the factors considered by the courts. When the dependent spouse has committed acts of illicit sexual behavior, the supporting spouse is not required to pay any alimony at all. If however, the supporting spouse has also committed acts of illicit sexual behavior then the court is permitted to award alimony. If only the supporting spouse has committed such acts then the court must award alimony. You and your spouse may decide that one of you is entitled to receive alimony payments and may do so without going to court.

If you are unable to agree on the matter, then you can submit the issue to the court for a decision. Alimony is paid by a supporting spouse to a dependent spouse when the court deems it necessary after considering the statutory factors. It is important to remember that regardless of whether alimony is arranged by agreement or ordered by a court, it is taxable to the recipient spouse and tax deductible to the payer spouse. An award of alimony may include, in addition to a sum of money in lump sum and/or periodic payments, transfer of title or possession of personal property and an interest in property, a security interest in or possession of real property. Both periodic and lump sum payments may be for a limited, specified term.

Alimony Payment

The term alimony payment refers to a periodic pre-determined sum awarded to a spouse or former spouse following a separation or divorce. The payment is the actual sum paid to fulfill alimony, which is the obligation to make payments for support or maintenance. Alimony payment structures and requirements are outlined by a decree or court order.

How Alimony Payments Work

Alimony is a legal obligation in which one spouse makes regular payments to the other spouse former or current. Alimony payments are also called spousal or maintenance payments in some parts of the States and are quite common in divorce and/or separation proceedings. Payments are normally issued in cases where one spouse earns a higher income than the other. The conditions of the agreement depend on how long the marriage lasted. When a married couple becomes legally separated or divorced, both parties can agree to the conditions of alimony on their own. This represents the type of financial support to which he or she is accustomed to throughout the life of the marriage. If, however, they can’t come to an agreement, a court may determine the legal obligation or alimony of one individual to provide financial support to the other. Alimony payments may not be issued if both spouses have similar annual incomes or if the marriage is fairly new. A judge or both parties may set an expiration date at the onset of the alimony decree after which time the payer is no longer required to provide financial support to his or her spouse. Alimony can also be terminated in the following situations:

• If the receiving spouse remarries
• If one spouse dies
• If the couple’s child or children become of age and no longer require adult support
• If the receiving spouse makes no effort to become self-sufficient
Refusing to pay or not keeping up to date with alimony payments may result in civil or criminal charges for the payer.

Alimony payments are allowed to be deductible by the payer. The recipient of alimony payments, though, must include them as income on their annual tax returns.

According to the IRS, alimony payments must meet the following criteria:
• Spouses must file separate tax returns
• Alimony payments must be made by cash, check, or money order
• Payments are made under a divorce or separation instrument to a spouse or former spouse
• The instrument must specify payments as alimony
• Payments must be made when spouses live apart
• There’s no liability to make alimony payments after the recipient spouse dies

Alimony does not include child support, noncash property settlements, voluntary payments, or money used to keep up the payer’s property. Instead of cash payments structured into divorce decrees starting in 2019, some tax advisers suggest the higher-earning partner award the spouses an individual retirement account (IRA) instead, which is in effect a tax deduction since no taxes had been paid on the amounts added to the account. The spouse who receives the account would have to pay taxes, though presumably at a lower rate. But the money can’t ordinarily be taken out before age 59.5 without incurring a 10% penalty.

If you can show to the judge that your spouse cheating on you lead to the break-up chances are you won’t have to provide alimony for your ex. Also, you may get a larger share of the matrimonial property. But you need those receipts to prove your spouse spent the marital assets while having an affair. If you forgave your spouse for being unfaithful and you spent a significant amount of time as couple after the affair, the court won’t look at adultery as a contributing factor for getting a divorce unless your spouse was unfaithful again. When it comes to reasons that people choose to get divorced, one of the most devastating is their spouse cheating on them. It is a betrayal that simply cannot usually be overlooked. However, whether or not adultery affects divorce proceedings depends on what aspect of the divorce we are talking about. First, we need to point out that Utah takes adultery seriously – it is a misdemeanor criminal offense. However, in most cases, adultery is not going to be a factor when dividing a couple’s property during the divorce.

If a spouse spent a large amount of the couple’s money on their affair, this might be taken into account when it comes to property division. For this to occur, the spouse who was cheated on would need to gather financial records and receipts to show how much their spouse spent on maintaining their affair. Adultery will also not be taken into account when it comes to decisions pertaining to child custody or visitation unless the affair shows a spouse’s inability to properly care for their child. This is where Utah courts will consider the effect of adultery. Spousal maintenance is a vital part of the separation process. During a marriage, it is not uncommon for one spouse to depend on the other financially. During the divorce process, the courts may order the higher-earning spouse to make alimony payments to a financially dependent spouse.

If a spouse believes that they should not have to pay alimony because they were cheated on, they will need to gather sufficient evidence to prove an affair did occur. This includes gathering phone records, financial statements, and any other evidence that connects their spouse to an adulterous relationship (social media postings, text messages, etc.). While most people tend to think of alimony as something that husbands pay to wives, any spouse who otherwise meets the criteria can receive an award of alimony. As a general rule, the court takes into account the parties’ standard of living at the time they separated. The goal of alimony is to allow the parties to maintain their pre-separation standard of living. Also, according to Utah law, the duration of alimony cannot (absent exceptional circumstances) exceed the length of the marriage. Married for five years? Don’t expect ten years of alimony; it won’t happen.
There are factors the court must consider in deciding whether to award alimony (and how much, for how long), and other factors it may choose to take into account. According to statute, the court shall consider:

• the financial condition and needs of the spouse requesting alimony (the “recipient spouse”);
• the recipient spouse’s earning capacity, taking into account how time spent caring for a child of the payer may have affected that capacity;
• the ability of the payer spouse to provide support;
• the length of the marriage;
• whether the recipient spouse has custody of a minor child who needs support;
• whether the recipient spouse worked in a business that was owned or operated by the payer; and
• whether the recipient paid for or enabled the payer to receive education during the marriage which directly contributed to an increase in the payer’s skills.
The court may also take fault into account when determining an alimony award. Fault includes:
• adultery;
• deliberately harming or trying to harm the other spouse or minor children;
• deliberately causing the other spouse or minor children to fear life-threatening harm; or
• substantially undermining the other spouse’s or minor children’s financial stability in some way.

As mentioned above, the court tries to allow the parties to maintain the standard of living they enjoyed just before they separated. In a very short term marriage with no children, the court might simply try to place the parties back in the positions they were in at the time of the marriage. What if there is simply not enough money, when the parties are in separate households, to maintain the pre-separation standard of living? Rather than tell one party or the other that they’re out of luck, the court will often try to equalize the shortfall; the recipient may not get as much alimony as he or she hoped for, and the payer may have to write a bigger alimony check than he or she would like. Many of us have heard tales of devious spouses who have tried to minimize their income or pad their expenses, or time their divorces so they would have to pay less alimony. Utah courts do not look favorably on these efforts. Let’s say you and your spouse were married for 30 years. You’ve always been the primary breadwinner, and your spouse has taken care of the kids and household so you were free to work long hours and travel for your job. You’re on the cusp of a promotion that comes with a big raise in pay. You’ve been thinking about divorce for a while, and you decide to separate from your spouse now, before the spike in pay kicks in and causes you to have to make a bigger alimony payment. Under the law, if a separation takes place just before an increase in pay that’s due to the effort of both spouses, the court can consider that fact in determining an alimony award.

Modification and Termination of Utah Alimony

Of course, life doesn’t stop changing after divorce, and some of those changes warrant a modification, or even termination, of alimony. You and your spouse may decide to specify some conditions for modifying alimony in the terms of your divorce. For instance, you might agree to reduce alimony by a certain amount when the payer reaches an agreed-upon retirement age.
Factors that may lead to modification include the payer losing a job, taking a pay cut, or retiring; serious illness on the part of the payer or recipient; or some other situation that dramatically affects the ability of the payer spouse to continue making alimony payments. The court will never force a party to pay alimony if doing so means that he or she could no longer be self-supporting. Of course, alimony must come to an end at some point. If the recipient remarries, that is ground for immediate termination of alimony payments. The only exceptions are if the spouses agreed to continue alimony payments even if the recipient remarried, or if they settled on a lump sum payment. The payer’s remarriage has no effect on alimony payments.

Similarly, if the recipient of alimony moves in with a romantic partner, alimony is terminated. Cohabitating couples, whether married or not, tend to provide each other with some financial support. Therefore it would be unfair for the payer spouse to have to provide support the recipient no longer needs. Alimony is a complex issue, and the experience of your attorney can make a big difference in how much you receive or pay.