Many people who undergo a divorce in Utah are either ordered to receive alimony (“spousal support”), or to pay it. Usually alimony is paid for a certain number of years at a set monthly amount. Unless the decree states otherwise, a monthly alimony obligation will terminate if the receiving ex-spouse either dies or remarries. However, sometimes other types of significant changes in circumstances occur after a divorce is finalized, and an ex-spouse wonders: Should the alimony amount owed per month change?
The answer to that question is “perhaps.” A judge could order a change to the alimony obligation if significant changes in circumstances have occurred, but it will depend on a number of factors.
First, was the change in circumstances “substantial” and “material?”
Judges in Utah have considerable discretion in determining whether they view a change in circumstance as “material” and “substantial” versus minor and insubstantial. In some instances it could be retirement, and/or receiving social security benefits, or experiencing a significant, involuntary decrease of income. (See Young v. Young, 2009 UT App 3 [Utah Ct. App. 2009]; see also Earhart v. Earhart, 2015 UT App 308 [Utah Ct. App. 2015.])
The second major question is: Was the material change in circumstances “foreseeable” at the time of the divorce? Even if a judge finds that a change in circumstances is indeed material and substantial, if it was “foreseeable” at the time of the divorce, the judge may not amend the alimony obligation.
Until recently, Utah judges could determine whether a material change in circumstance was foreseeable at the time of divorce simply by determining whether the change was “contemplated in the divorce decree.” In other words, if it was mentioned in the actual text of the divorce decree, it was considered foreseeable. Otherwise, it was usually not considered foreseeable.
However, on September 5, 2018, the Utah Supreme Court decided in MacDonald v. MacDonald, 2018 UT 48 (Utah 2018) to overturn this “contemplated in the divorce decree” standard. While a change in circumstances included in the text of the divorce decree will certainly still be considered foreseeable, a change in circumstances not included in the text could also now be considered foreseeable.
With this recent case interpretation, Utah trial courts are expected to look outside of just the plain language divorce decree itself to determine foreseeability. But exactly how far should they look? The MacDonald decision considered this question and clarified that a judge should look to the data, the facts, the material that was available in the case record at the time of divorce, but no further than that.
What does all of this mean? Let’s say a significant change in circumstance occurs post-divorce, and Joe wants the alimony obligation to change but Mary does not. Mary wants to introduce information that the change of circumstance was foreseeable at the time of divorce. If her proof was included in any case material in the court records at the time of divorce, then the Court will consider it, likely find that the change was foreseeable, and not order a change of alimony. But if Mary’s proof was not a part of the original case record, then the Court would not consider that evidence to be foreseeable, and could then consider amendment of the alimony obligation.
As with any legal issue, there are always complexities and intricacies that come into play. If you have questions or are considering changes to an alimony obligation based upon a change in circumstance, it is always best to consult with a competent, experienced Utah Attorney for advice regarding your situation.