Modifying Support Payments in a Utah Divorce Decree

Cox v. Cox

In Cox v. Cox, 285 P.3d 791 (Utah App. 2012), the issue of modifying child support and alimony payments was raised. In that case the husband and wife entered into a settlement agreement that husband would pay wife $3,000/month for ten years as a “property settlement” which was intended to included child support as part of that amount.  The parties agreed that neither party would pay alimony to the other.  The decree was entered in 2005.  They had two minor children.

Wife remarried in 2006, but husband did not find out until 2006 and kept making the $3,000/month payment. Generally, alimony ceases automatically upon remarriage.  The last child became an adult in 2007.  Husband kept making the $3,000/month payment.

Eventually husband filed a petition to modify the divorce decree and argued that the monthly payments should have ceased upon wife’s remarriage or at least the first month after the petition was filed, but the trial court found that equity mandated that payments cease on the day of the trial on husband’s petition.

On appeal the court found that because the decree required husband to pay a property settlement and not alimony, that the monthly payments did not cease upon wife’s remarriage.  The court found that this was consistent with the Utah Legislature’s treatment of alimony in other circumstances.  Specifically, while alimony automatically terminates upon the other spouse’s remarriage, if the other spouse does not remarry but is cohabitating, alimony terminates only upon the moving party’s establishing that the former spouse is cohabitating.  “A marriage-like cohabitation relationship is difficult to define with a hard-and-fast list of prerequisites.”

The court also found that based on Utah Code 78B-12-112, the trial court should have made the modification order effective as of the first month after husband’s petition was filed because Section 78B-12-112 applies to both child support and spousal support.

Lessons Learned from Cox

There are two very important lessons we learn from the Cox case:

First, the divorce decree must be unambiguous and specific.  If you want a certain payment to be considered alimony by the court, then call it alimony.

Second, if remarriage is not involved, it is extremely difficult to prove marriage-like cohabitation and the burden is on the paying spouse to prove marriage-like cohabitiation.

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