The problem with the current Utah alimony law
Utah is far from being the worst or most unfair state when it comes to alimony laws. Unlike some other states, we at least have a limitation on its duration, some high-level guidelines for setting the amount, and a few other common sense clauses, such as the termination of alimony if the recipient remarries. Much progress has been made over the years, however, the law still needs a lot of work. It needs profound and meaningful reform to address many common issues faced by divorcing couples.
First, what is the purpose of alimony in Utah? Is it to ensure that the recipient doesn't go into poverty? Is it to equalize the standard of living between the two parties? Is it to punish the payer for letting his/her marriage "fail"? Is it to "reimburse" the recipient for his/her hard work as a caretaker? Is it to discourage couples from divorcing? The Utah code provides some hints on what judges should do, but it doesn't really go into the why:
Section 8(e): "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)."
Section 8(f): "The court may, under appropriate circumstances, attempt to equalize the parties' respective standards of living."
There are many other clauses that judges are supposed to consider, but these two seem to set the precedence that equalization and maintaining the standard of living that the spouse is accustomed to is a big thing in Utah.
So my first issue with the Utah code is the goal it defines for alimony. I believe that its only goal should be to ensure that the recipient doesn't fall into poverty. In other words, alimony should be for basic needs, as short as possible, when needed, and for re-rehabilitative purposes only. Click here to read an article on "Is alimony fair or needed?".
My second issue has to do with the lack of more definitive and formula based guidelines. There are many high-level guidelines that judges are supposed to use when deciding on alimony. The language in the code is pretty clear and straight forward. No law degree is needed to understand it, and for that, whoever wrote the code deserves some applaud. However, as with most areas in family law, there is too much room for judge discretion. At the end of the day, it's mostly about how a judge feels about each party, his/her personal beliefs, and who can provide the most convincing arguments.
Now, I know that many people believe that it's a good thing for judges to have discretion to decide on these matters. The idea sounds good on paper: "Each situation is unique and, therefore, a judge needs to carefully evaluate each case and make a fair and appropriate decision based on the facts that are presented to him/her". The problem with this argument is that, believe it not, judges are not sages capable of understanding the unique complexities of each marriage and each case in one trial. Like every other human being, they have flaws and limitations.
The wide discretion given to judges has the following consequences:
Unpredictability of results: Ask any divorce attorney or talk to anyone and you will understand that no one knows what's going to happen if you go to trial.
Inconsistency: Each judge does his/her own thing in his/her own way.
An incredible amount of unnecessary litigation: The law provides a financial incentive for people to litigate. In the lack of clear formula based guidelines, your best bet is to hire a $250 per hour lawyer and go spend your kids' college fund on trying to convince the judge that you can't pay 3k per month. If you're on the receiving end and want to maximize your "reimbursement", you can go above and beyond to show that you can't make money.
Perhaps the highest price comes after the divorce is over and there are children involved. The judge forgets your case and moves on to the next one, the lawyers get paid and move on, but you still need to have a relationship with the ex. Divorcing with children involves a "reconfiguration" of the family dynamics. At this difficult transition in life, parents need to be united in order to successfully co-parent and support their children. Unfortunately, the litigation based system more often than not annihilates any hope of a supportive co-parenting relationship. Contrary to what many idealistic individuals would like to believe, very few people are enlightened enough to maintain a good relationship after so much animosity in court. See this article for the real cost of alimony.
The third and final main problem is that the law lacks a provision for retirement. Let's say that a husband has been married for 40 years, divorces at age 65, is ready to retire, and the soon to be ex hasn't worked for the last 20 years. In my mind, the couple should divide the assets and both should be allowed to retire. In the Utah law, however, the wife will get half of the assets and be allowed to retire, while the husband will be doomed to pay alimony for at least 20 more years, effectively depriving him from his right to retire. The husband could try to go to court to have his alimony adjusted (more litigation), but it's not a guaranteed result. Alimony needs to end at the social security retirement age.
The Summary of How Alimony Should Work 1. It should be re-rehabilitative only with the goal of preventing someone from falling into poverty.
2. It should be formula based to provide predictability and consistency. Most of all, it would eliminate most of the unnecessary litigation, and all the animosity that comes with it.
3. It should automatically end at the social security retirement age.