Friday, March 8, 2013

Divorce: If a Decree Misclassifies a Payment, the Effective Date of the Reclassification is the Date of the Petition to Modify.

Cox v. Cox, 2012 UT App. 225, Utah Court of Appeals, August 16, 2012

In Husband and Wife’s stipulated divorce decree, husband was ordered to pay $3000 per month as a property settlement and child support.  Wife remarried.  Husband did not learn of the remarriage for two years, upon learning of the remarriage he petitioned the court to modify his decree and to properly classify the monthly payments as child support and alimony.

Because there was no consideration for the property payments, the trial court classified payments as alimony.  However, the Court terminated alimony on the day of the trial and not the date of remarriage. Husband appealed.

The Court of Appeals affirmed the trial court’s denial of retroactively modifying the alimony award to the date of remarriage. The Court found it was Husband’s burden to have the payments classification corrected.  The court analogized this re-classification procedure with having to establish cohabitation in order to end alimony.  The misclassification in the decree is effective until a party asks to correct it.  The Court of Appeals did modify the award retroactively to the date the Petition to Modify was filed.

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