Utah Court of Appeals
Can Utah courts order alimony payments from separate property? Jensen v. Jensen Explained
Summary
Former husband appealed the trial court’s reduction of wife’s alimony from $2150 to $1500 per month, arguing wife cohabitated with another man and that alimony should be eliminated because his only income came from separate property awarded in the divorce. The Court of Appeals affirmed, finding no cohabitation occurred and that separate property income can properly be considered for alimony payments.
Practice Areas & Topics
Analysis
Background and Facts
In Jensen v. Jensen, a divorced husband challenged the trial court’s reduction of his wife’s alimony from $2150 to $1500 per month. The husband argued that his wife had cohabitated with another man, which should terminate alimony, and that alimony payments should cease entirely because his only income source was his separate property from the divorce settlement. The wife had temporarily stayed at another man’s home for two months, sharing a bedroom with the man’s sister, but maintained her own residence and did not share expenses or have open access to the home.
Key Legal Issues
The court addressed two primary issues: whether the wife’s living arrangement constituted cohabitation sufficient to modify alimony, and whether a payor spouse can avoid alimony obligations when income derives solely from separate property awarded in the property settlement.
Court’s Analysis and Holding
The Utah Court of Appeals affirmed the trial court’s decision. Regarding cohabitation, the court applied the Sigg standard requiring both common residency and sexual contact. The court found no common residency because the wife’s arrangement was temporary, she maintained her own home, lacked a key, and did not share living expenses. On the separate property issue, the court rejected the husband’s argument, explaining that alimony and property division serve distinct purposes. The court emphasized that considering all income sources, including separate property, is appropriate when determining a payor spouse’s ability to pay under the Jones factors.
Practice Implications
This decision clarifies that Utah courts will consider income from separate property when evaluating alimony obligations, preventing payor spouses from avoiding support by relying solely on separately-owned assets. For practitioners seeking alimony modification based on cohabitation, the decision reinforces that temporary living arrangements without true shared residency are insufficient. The ruling also demonstrates the importance of the substantial change of circumstances standard, as the husband failed to rebut the wife’s testimony regarding her continued inability to work.
Case Details
Case Name
Jensen v. Jensen
Citation
2007 UT App 377
Court
Utah Court of Appeals
Case Number
No. 20060633-CA
Date Decided
November 23, 2007
Outcome
Affirmed
Holding
A trial court may properly consider income from a payor spouse’s separate property when determining ability to pay alimony, and temporary living arrangements without common residency do not constitute cohabitation for alimony modification purposes.
Standard of Review
Mixed question of fact and law for cohabitation (factual findings reviewed for clear error, ultimate conclusion reviewed for correctness); abuse of discretion for alimony modification
Practice Tip
When seeking alimony modification based on cohabitation, ensure evidence establishes both common residency (shared principal domicile for more than a brief period) and sexual contact, as temporary living arrangements alone are insufficient.
Need Appellate Counsel?
Lotus Appellate Law handles appeals before the Utah Court of Appeals, Utah Supreme Court, California Court of Appeal, and the United States Court of Appeals for the Tenth Circuit.
Related Court Opinions
About these Decision Summaries
Lotus Appellate Law publishes these summaries to keep practitioners informed — not as legal advice. Each case turns on its own facts. If a decision here is relevant to your matter, we’re happy to discuss it.