CASE MANAGEMENT

CS 057 Spousal Support (Alimony)

10/88 Revised 08/16/16 Training Completed 07/15/15

42 U.S.C. 654(31); 22 CFR 51.60, 45 CFR 301.1, 45 CFR 302.31; U.C.A. 30-3-5, 62A-11-303 & 401, 78B-14-211; R527-34

 

 

Statutory Authority

 

Utah law found at U.C.A. 30-3-5 states:

“(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 enabling the payor spouse to attend school during the marriage.

(b) The court may consider the fault of the parties in determining whether to award alimony and the terms thereof.

(c) "Fault" means any of the following wrongful conduct during the marriage that substantially contributed to the breakup of the marriage relationship:

(i) engaging in sexual relations with a person other than the party's spouse;

(ii) knowingly and intentionally causing or attempting to cause physical harm to the other party or minor children;

(iii) knowingly and intentionally causing the other party or minor children to reasonably fear life-threatening harm; or

(iv) substantially undermining the financial stability of the other party or the minor children.

(d) The court may, when fault is at issue, close the proceedings and seal the court records.

(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). 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.

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

(g) 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.

(h) 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.

(i) (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.

(j) 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 the payor party's 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.”

 

U.C.A. 78B-14-211 Continuing, exclusive jurisdiction to modify spousal support order states:

“(1) A tribunal of this state issuing a spousal support order consistent with the law of this state has continuing, exclusive jurisdiction to modify the spousal support order throughout the existence of the support obligation.

(2) A tribunal of this state may not modify a spousal support order issued by a tribunal of another state or foreign country having continuing, exclusive jurisdiction over that order under the law of that state or foreign country.

(3) A tribunal of this state that has continuing, exclusive jurisdiction over a spousal support order may serve as:

(a)    an initiating tribunal to request a tribunal of another state to enforce the spousal support order issued in this state; or

(b)   a responding tribunal to enforce or modify its own spousal support order.”

 

In addition, federal regulations found at 45 CFR 302.31 state:

“The State plan shall provide that:

(a) The IV-D agency will undertake . . .:

(2) In the case of any individual with respect to whom an assignment as defined is [Sec.] 301.1 of this chapter is effective, to secure support for a child or children from any person who is legally liable for such support, using State laws regarding intrastate and interstate establishment and enforcement of support obligations. Effective October 1, 1985, this includes securing support for a spouse or former spouse who is living with the child or children, but only if a support obligation has been established for that spouse and the child support obligation is being enforced under the title IV-D State plan.”  (Emphasis added.)

 

When a IV-A/Medicaid applicant/recipient applies for services with Office of Recovery Services/Child Support Services (ORS/CCS), CSS must collect both child support and spousal support, if ordered.  The applicant/recipient may not select which services CSS will provide.  For example, if a IV-A cash or Medicaid recipient asks CSS to collect only child support, inform the recipient that his/her rights have been assigned to the state and CSS is responsible to collect both obligations.

 

If the same request is made by a Non-IV-A applicant, inform the applicant that CSS is responsible to collect on both obligations.  Administrative rule, R527-34-2 Non-IV-A Services (1)(d) states, “Attempt to enforce court-ordered spousal support if the minor child of the parties resides with the obligee and ORS/CSS is enforcing the child support order; . . . .”  (Emphasis added.)  ORS will continue to attempt collection of spousal support unless ordered to stop or the applicant cohabitation.

 

 

Criteria

 

Collect and enforce current and past-due spousal support (alimony) on all IV-A and Non-IV-A cases if the following criteria are met:

 

1.                   A spousal support order has already been established by the court.  (CSS will not establish a current spousal support amount);

 

2.                   A child support obligation exists (i.e., current and/or arrears) and CSS is enforcing the debt;

 

3.                   The CP resides with at least one child for which CSS is currently enforcing a child support obligation (current and/or arrears);

 

                If the NCP claims that the child(ren) does not reside with the CP, contact the CP to inform him/her of federal regulation 45 CFR 302.31(a)(2) requiring IV-D offices to provide spousal support services only when the CP resides with the child(ren) and ask him/her to confirm or deny the NCP’s claim.  If the CP claims that the child:

a.                   Resides with him/her – determine if the child(ren) has emancipated:

i.                     Minor – if the child(ren) is in the home and is not emancipated, continue to collect spousal support until the spousal support order is modified in court.  The NCP is responsible to modify the order.

ii.                   Emancipated – if the child(ren) is legally emancipated, inform the NCP and CP that CSS will no longer collect or enforce the spousal support unless/until the matter is resolved in court.

b.                  Does not reside with the CP – if the CP confirms that the child no longer resides with him/her, inform the NCP and the CP that CSS will no longer collect or enforce spousal support.

 

4.                   The spousal support order is more than a token amount (e.g., more than $1.00 per month, etc.);

 

5.                   The CP is not remarried; and,

 

NOTE:  If the CP gets remarried, end the spousal support debt/obligation effective the month following his/her remarriage. 

6.                   The CP is not cohabitating with another person.  Cohabitating means living together in a sexual relationship.

 

If the NCP claims that the CP is cohabitating with another person, contact the CP and ask him/her to confirm or deny the NCP’s claim.  If the CP:

a.                   Denies cohabitation – determine if the child(ren) has emancipated:

i.                     Minor – if the child(ren) is in the home and is not emancipated, continue to collect spousal support until the spousal support order is modified in court.  The NCP is responsible to modify the order.

ii.                   Emancipated – if the child(ren) is legally emancipated and ORS is collecting child support arrears, inform the NCP and CP that CSS will no longer collect or enforce the spousal support unless/until the matter is resolved in court.

b.                  Confirms cohabitation – if the CP confirms that s/he is cohabitating with another person, inform the NCP and the CP that CSS will no longer collect or enforce spousal support.

 

 

Spousal Support Collection

 

Spousal support and child support case handling and collection procedures are generally the same, which means CSS may utilize all collection/enforcement methods for spousal support debt(s).  Tax refund intercept(s) may be applied to past due spousal support, if the conditions stated in subsection Criteria (above) are met.  For more information and procedures, refer to the appropriate collection enforcement sections of Volume 2.

 

Once the child(ren) emancipate and there are no child support arrears, CSS is no longer authorized to collect spousal support pursuant to federal and state laws, 45 C.F.R.§302.31, Utah Code Annotated §62A-11-303 and 401.

 

NOTE:  The spousal support debt should be ended on ORSIS effective the first day of the month following the date the last child emancipates and/or there are no longer any child support arrears due and owing on the case.

 

If spousal support is still owed to the CP, s/he may pursue the spousal support privately.

 

 

Spousal Support Settlements

 

Spousal support debt(s) may be settled for less than 100% of what is owed on the debt.  If the debt is IV-A, follow the procedures in Volume 2. If the debt is Non-IV-A, the CP must agree to waive all or part of the Non-IV-A spousal support debt.  If the CP changes his/her mind after signing the waiver, do not collect the amount of spousal support originally waived.  The CP is responsible to collect the amount identified under the waiver privately.

 

 

Spousal Support Arrearages Concerning Passport Release

 

Utah law found at U.C.A. 62A-11-401(3) defines child support as the following:

“‘Child support’ means a base child support award as defined in Section 78B-12-102, or a financial award for uninsured monthly medical expenses, ordered by a tribunal for the support of a child, including current periodic payments, all arrearages which accrue under an order for current periodic payments, and sum certain judgments awarded for arrearages, medical expenses, and child care costs. Child support includes obligations ordered by a tribunal for the support of a spouse or former spouse with whom the child resides if the spousal support is collected with the child support.”  (Emphasis added.)

 

Federal regulations found at 45 CFR 301.1 state the following:

“Past-due support means the amount of support determined under a court order or an order of an administrative process established under State law for support and maintenance of a child, or of a child and the parent with whom the child is living, which has not been paid. . . . [P]ast-due support means support owed to or on behalf of a qualified child, or a qualified child and the parent with whom the child is living if the same support order includes support for the child and the parent  (Emphasis added.)

 

If the NCP owes support arrearages, then his/her passport cannot be released until s/he has paid all support owed or has obtained an exception through CSS.  Support arrearages may include either child support or spousal support.