Bruce and Nicole were divorced in February 2009 pursuant to an agreed upon stipulation. However, they soon began to mutually violate the Divorce Decree in myriads of ways.

As a prime example, whereas Nicole was awarded the house and ordered to make all the mortgage payments, Bruce moved back in with her in April 2009 and made all the mortgage payments. Nicole never made a single mortgage payment. Coincidentally, the mortgage payment was $1,728 per month, very close to the alimony Bruce was required to pay.

Bruce was ordered to pay $1,700 per month in alimony to Nicole, something he stopped doing after making a grand total of one payment.

In their divorce agreement, the parties characterized their time sharing arrangement with the children as “joint physical custody,” even though Bruce had the children for 80% of the overnights and Nicole had them for 20% of the overnights, whereas joint physical custody by definition requires both parents to have more than 30% of the overnights.

Even though Bruce had the kids the vast majority of overnights, he was ordered to pay child support to Nicole in the amount of $739 per month according to the sole custody child support worksheet the parties prepared.

Some time after Bruce moved back into the house, the parties resumed a conjugal relationship complete with a sexual relationship just like a married couple, such that they met the statutory and case law criteria for cohabitation under Utah law.

In April 2010 Nicole left for basic training in the military and served two tours of duty overseas. She visited the children and took them on vacation periodically while on leave. For the next seven years Bruce resided in the home with the children and provided all necessary financial support for them, including making the mortgage payments on the house. Nicole provided no financial support. In 2015 Nicole remarried.

During this period of time, neither party filed any pleadings with the court seeking to modify the divorce decree to ratify the de facto changes they had made. However, this changed in 2017 when Bruce sought to refinance the house.

At first Bruce asked Nicole to help him with the refinance process by deeding the home to him. She refused to do so unless he agreed to pay her one-half of the equity in the house. She asserted that she owned the home and that Bruce’s mortgage payments constituted either rent or alimony payments to her. But somehow Bruce was able to refinance the home without her participation.

Bruce filed a petition to modify the divorce decree, along with a motion for temporary orders, making three distinct requests for relief. First, he asked that the court terminate his alimony obligation going back to 2009 when he began cohabiting with Nicole. Second, he asked that he be awarded sole physical and legal custody of the parties’ two remaining minor children, and that Nicole be ordered to pay him child support. Finally, he asked that he be awarded the home because he had assumed the mortgage payments in order to avoid foreclosure and, he alleged, Nicole had abandoned the house when she entered the military.

Nicole responded with a motion of her own. She asked that Bruce be held in contempt of court for failing to pay alimony and child support, and for occupying the home and refinancing it without her permission.

After a hearing, the Domestic Relations Commissioner certified four issues as ripe for an evidentiary hearing: 1) whether Bruce should be held in contempt for failing to pay alimony, and if so, how much alimony arrears Bruce owed to Nicole, 2) whether Bruce should be held in contempt for failing to pay child support, and if so, how much child support arrears Bruce owed to Nicole, 3) whether Bruce should be held in contempt of court for refinancing the house without Nicole’s permission, 4) whether Bruce should be held in contempt of court for failing to vacate the house in favor of Nicole.

Bruce maintained that he did not owe any alimony after the parties began cohabiting in April 2009 and/or that his payment of the mortgage counted as alimony. He argued that he did not owe child support arrears because the children had been in his full time care and Utah Code Section 78B-12-108 provides that child support “follows the child.” He argued that Nicole had abandoned the house when she entered the military.

Following a hearing, the district court found that Bruce owed north of $150,000 in alimony arrears to Nicole, plus post-judgment interest. Even though the parties had cohabited after the divorce, the alimony termination statute as interpreted by case law required that alimony could only be terminated for cohabitation if a petition or motion to terminate was filed during the period of time the cohabitation was taking place. (The statute has since been modified to require that a motion to terminate be filed within one year after the obligor knew or should have known of the cohabitation).

The district court held that it would be inequitable to hold Bruce responsible for child support arrears because the children had been in his full time care and he had provided all the financial support for them with little or no contribution from Nicole.

The district court did not find Bruce in contempt of court for remaining in the home and refinancing it without Nicole’s permission. Rather, the Court allowed Bruce to remain in the home pending trial.

On appeal, the Court of Appeals upheld the district court’s alimony judgment, rejecting Bruce’s claim that his and Nicole’s cohabitation terminated alimony. The problem was that he filed years too late. The Court of Appeals relied on the then applicable statute and case law in holding that Bruce needed to file for termination while the parties were still cohabiting.

With respect to child support, the Court of Appeals noted that, while Utah Code Section 75B-12-108 provides that child support follows the child, Section 78B-12-112(4) provides that a claim to modify child support can generally only be retroactive to the month following the date on which the petition to modify is served on the parent whose support is affected. Thus, Bruce still owed the child support arrears, even though he was the parent who had provided care and support for the children. The Court held that a general claim of equity cannot take precedence over a specific statutory injunction.

In sum, the district court’s decision alimony arrears was upheld but its decision on child support arrears was reversed. The case was remanded to the district court for further findings on appropriate sanctions, if any, for Bruce’s contempt of court. The case was also remanded for consideration of Bruce’s petition to modify.

See McFarland v. McFarland, 2021 UT App 58.

One takeaway from this case might be, while a do-it-yourself divorce in Utah is certainly possible, is it advisable? Put another way, is it easier to get things right the first time, or spend time and money mopping things up years down the road? These are considerations even the best-intentioned and most amicable divorcing parties may wish to consider.

This material should not be construed as legal advice for any particular fact situation, but is intended for general informational purposes only. For advice specific to any individual situation, an experienced attorney should be contacted.