When going through a divorce fault may be a consideration by the court. In Mark v. Mark in 2009 this was examined in a more thorough manner;
To the extent the trial court’s alimony award was a consequence of his fault, Husband argues that the trial court erred in making the alimony award. Regarding Husband’s fault, the trial court made the following finding: “Although fault is an appropriate consideration in awarding alimony in addition to the [mandatory statutory] factors, the Court is mindful of the Utah policy that the purpose of alimony is to provide support, not to reward or punish.” Mark v. Mark, 2009 UT App 374, 223 P.3d 476, 481
This brings out a good point in that alimony should not award or punish, yet fault can be considered. The case continues;
“The trial court correctly observed that courts may consider fault in fashioning alimony awards but that “[c]onsidering the fault of a party is distinct from punishing a party based on fault.” Christiansen v. Christiansen, 2003 UT App 348U, para. 9, 2003 WL 22361312 (mem) (emphasis added); see also Davis v. Davis, 2003 UT App 282, ¶ 9 n. 1, 76 P.3d 716. However, there is also some merit to the trial court’s implicit observation that this is merely a “distinction without a difference,” see Central Fla. Invs., Inc. v. Parkwest Assocs., 2002 UT 3, ¶ 17, 40 P.3d 599. In other words, if a trial court uses its broad statutory discretion to consider fault in fashioning an alimony award and then, taking that fault into consideration, adjusts the alimony award upward or downward, it simply cannot be said that fault was not used to punish or reward either spouse by altering the award as a consequence of fault. With this legal framework in place, trial courts are left in the difficult position of trying to determine what the term “fault” means, in what context, and what, if any, consequence fault should have on an award of alimony.” Mark v. Mark, 2009 UT App 374, 223 P.3d 476, 482
Therefore if fault is brought up, you want to make sure you make the correct distinctions in either arguing against it or for it. We have experience in arguing for and against alimony during the trial process. You need someone that understands both sides of alimony so that you can be better protected and better prepare for what the other party may argue. Call today for a free consultation.
