Currently in Utah, alimony, the Utah Code provides, at § 30-3-5(11)(a), which will, effective September 1, 2024, be renumbered as § 81-4-504(1), as follows:
(11)(a) The court has continuing jurisdiction to make substantive changes and new orders regarding alimony based on a substantial material change in circumstances not expressly stated in the divorce decree or in the findings that the court entered at the time of the divorce decree.
Section 30-3-5(14), which will, effective September 1, 2024, be renumbered as § 81-4-505(3), also provides, regarding the termination of spousal support:
(14)
(a) Subject to Subsection (14)(b), the court shall terminate an order that a party pay alimony to a former spouse if the party establishes that, after the order for alimony is issued, the former spouse cohabits with another individual even if the former spouse is not cohabiting with the individual when the party paying alimony files the motion to terminate alimony.
(b) A party paying alimony to a former spouse may not seek termination of alimony under Subsection (14)(a), later than one year from the day on which the party knew or should have known that the former spouse has cohabited with another individual.
So, alimony can be terminated, or it can be reduced. There are various ways one can obtain a reduction in the alimony payment obligation, but in most cases, alimony reductions are ordered when the payors ability to pay has decreased due to no fault of his or her own, or where the payees need has decreased. Decreased ability to pay is typically proven by loss or change in employment or disability. Decreased need is typically shown by proving either that the payor’s income has increased or that the payee’s living expenses have decreased.
While decreased ability to pay or decreased need (or a combination of the two) could be so great as to warrant the total termination of alimony, most petitions to terminate alimony are based upon claims of cohabitation by the alimony payee.
Proving cohabitation, however, is extremely difficult. In fairness to the courts, it is difficult to define what marital cohabitation is, as every married couple does not live and reside together in the same way. Yet it seems that both the district and appellate courts in the state of Utah selectively place more or less emphasis on the various factors to be considered on a petition to terminate alimony based on cohabitation.
This is especially true when an alimony payor can prove that the alimony payee is spending a substantial amount of time overnight at the residence of a boyfriend or girlfriend (what we in the legal profession sometimes call a paramour when we are looking for a gender-neutral term).
As the overwhelming majority of alimony recipients are women, I will refer to an alimony recipient in the singular from here on out as “her” and “she”.
Most alimony recipients aren’t dumb; They know that if they cohabit their alimony can be terminated. And so many alimony recipients who want to cohabit will game the system so that technically they do not qualify as cohabitating, even though most people would see it as a clear case of having their cake and eating it too.
For example, Utah currently defines cohabiting as
“to live together, or to reside together on a regular basis, in the same residence and in a relationship of a romantic or sexual nature.” Utah Code § 30-3-5(1)(a).
As you might imagine, it is difficult to determine the exact number of overnights and shared expenses and experiences that pass the “time to terminate alimony” test. If you could try close cases before several different judges, you could easily get different outcomes. One judge could find the number of overnights, meals and expenses shared together, etc. meets the cohabitation standard, another judge could find that cohabitation missed the mark by just a day or meal or dollar or two. When rules for terminating alimony come down to splitting hairs this finely, injustice occurs, on both sides of the alimony issue, though usually it’s the alimony payor who suffers injustice more often.
After all, if an alimony recipient is spending half or more of her time at her paramour’s home, eating his food, and benefiting from his expenditure of money on her for entertainment and other activities, the alimony recipient’s financial need is clearly reduced by those financial benefits the paramour confers.
Alimony is based upon meeting a woman’s financial needs without contribution from anyone else. It is thus manifestly unfair for such a woman to continue to receive the full alimony payment each month if, post-divorce, she regularly receives from her paramour the benefits of him paying for half or all of some of her lodging, utilities, meals, other necessities, and entertainment, yet continues to receive alimony that was awarded to cover those costs. That’s double dipping.
Now, while I believe in marriage and I oppose jacking up, I’m no prude. I recognize and respect the fact that adults are free to cohabit if they wish. Alimony, however, was never meant to be paid to one who does not need all of it.
Having a boyfriend pick up the tab for the occasional meal is clearly not a sufficient reason to reduce alimony. Receiving a gift of a bracelet or flowers from a generous boyfriend would not be sufficient either. Spending the night at a boyfriend’s home infrequently would not be reason to terminate alimony either. Even going on vacation with a boyfriend for a week or two or three or even four in the span of a year or more would not be enough time spent together to justify terminating alimony.
But if a woman is spending the night with her boyfriend on average of half the time on an annual basis, if she and her boyfriend are routinely sharing the costs of food and lodging and other activities and things, then while that may not be grounds for terminating alimony altogether, it would certainly be grounds for reducing alimony commensurate with the financial benefits that this (for lack of a better word) “semi cohabitation” confers.
What if we created another standard for reducing alimony—as opposed to terminating it altogether—that was not as strict as the standard for terminating alimony? Such a standard would have many beneficial effects. One, it would help to keep alimony recipients honest, knowing that if they get too cute and dance too recklessly close to the line, they could see their alimony decreased. That my lead many to take a more conservative approach to their post-divorce romantic exploits. It might lead them to conclude that it’s more honest and less work to admit “I’m cohabiting, so you can stop paying me alimony,” than it is to maintain the level of deception needed to remain qualified to continue receiving alimony.
Utah Family Law, LC | divorceutah.com | 801-466-9277
