Navigating the Legal System
According the Utah State Court website:
“A divorce ends marriage and all direct legal relationship between couples, except those relationships and obligations specified in the divorce decree. These may include spousal support, parenting arrangement and support of children, division of property and payment of debts. Utah divorce laws allow for no-fault divorce on the grounds of irreconcilable differences.”1
According to Utah Code Annotated § 30-3-1, the Grounds for Divorce are:
(a) impotency of the respondent at the time of marriage;
(b) adultery committed by the respondent subsequent to marriage;
(c) willful desertion of the petitioner by the respondent for more than one year;
(d) willful neglect of the respondent to provide for the petitioner the common necessaries of life;
(e) habitual drunkenness of the respondent;
(f) conviction of the respondent for a felony;
(g) cruel treatment of the petitioner by the respondent to the extent of causing bodily injury or great mental distress to the petitioner;
(h) irreconcilable differences of the marriage;
(i) incurable insanity; or
(j) when the husband and wife have lived separately under a decree of separate maintenance of any state for three consecutive years without cohabitation.2
Issues to Consider When Divorcing
Child support
According to Utah Code Annotated § 30-3-5.1:
“Whenever a court enters an order for child support, it shall include in the order a provision for withholding income as a means of collecting child support as provided in Title 62A, Chapter 11, Recovery Services.”3
According to Utah Legal Clinic:
“Child support is the parents’ legal duty to financially support their children. Once a divorce is granted, the Court will apportion to each parent a ‘reasonable and proper share’ of the children’s expenses. Some of the factors the Court will consider include:
a) the standard of living and situation of the parties;
b) the relative wealth and income of the parties;
c) the earning ability of both parents;
d) the needs of parent receiving the support;
e) the age of the parties; and,
f) the support or alimony obligations from prior marriages or relationships
To calculate awards of child support the Utah Legislature established state-wide guidelines which were updated most recently effective Jan 1, 2008. The instructions, formula, guidelines and charts are available from the district court clerk in each county
In Utah, women and men are no longer minors after age eighteen.
If a child has a permanent disability and is unable to support her/himself, child support may be required past the age of twenty-one.
Child support can be withheld from a person’s paycheck up to one-half of disposable income. For information about services available or to request assistance from O.R.S. (Office of Recovery Services) call (801) 536-8500 or 1(800) 662-8525”.4
Custody
According to Utah Code Annotated § 30-3-10:
“If a husband and wife having minor children are separated, or their marriage is declared void or dissolved, the court shall make an order for the future care and custody of the minor children as it considers appropriate.”5
According to Utah Legal Services:
“There are 2 different kinds of custody which may be shared in 3 main ways. The two types of custody are:
- Legal custody which goes to who has the ability to make important decisions concerning the children, and
- Physical custody which goes to where the children will live.
As mentioned, each of the two types of custody may be shared in 3 different ways. This may be done differently for each type of custody:
- Sole. Legal and/or physical custody may be given to one parent alone (with rights of visitation to the other).
- Joint. In joint custody arrangements, both parents are involved. For instance, with joint legal custody, both parents would have a right to make the important decisions regarding the children such as education, religion and non-emergency medical care. This type of arrangement will only work where the parties get along very well and may communicate with each other often. Joint physical custody would entail moving the kids from one parent to the other for some amount of time as decided between the parties or the judge. However, the children must spend more than 110 nights each year in each home to call the arrangement ‘joint’.
- Split. This situation involves more than one child and the children are split between the parents. For example, one will live with the mother and one will live with the father. This type of arrangement is advised only in rare circumstances, as it is rare that this would be in the children’s best interests.”6
Alimony
According to Utah Legal Clinic:
“Alimony is support money from one former spouse to the other. When awarding alimony, the Court considers:
a) the financial condition of both parties,
b) both parties’ earning ability
c) the standard of living existing at the time of separation
d) the length of the marriage
Alimony ends when:
a) the spouse receiving it remarries
b) the spouse receiving it cohabits with another person
Alimony normally will not be ordered for a period longer than the length of the marriage except in extenuating circumstances. Alimony will sometimes be granted to a wife who has remained in the home, raised children during many years of marriage, has never worked outside the home, has no employable skills and is completely dependent on her husband for support.”4
See also Utah Code Annotated § 30-3-4.5
Property Division
According to Utah Legal Services
“There is no one way that property, debts and other issues are divided. You may do it anyway that makes sense in your situation. However, here are some general guidelines:
Debt. The general rule is that if there debt associated with property, the person who gets to keep the property will also have to pay the debt. However, where the person getting the property has no money or is disabled and the other party makes lots of money, then the person with money might be responsible for the debt. In addition, a spouse is generally not responsible for the other’s debt unless they have signed a loan agreeing to pay for your spouse’s debt or if the debt was for a family purpose (i.e., kids’ clothes, kitchen appliances, or anything that benefits the whole family).
Personal Property. Personal property is property that is generally considered to be moveable. This includes items like cars, furniture, dishes, etc. The general rule for property division is to divide it equally allowing each person to be able to go forward and set up a separate home. However, as with debts, a person generally gets to keep personal property he or she brought into the marriage, or property that was a gift to one person, or that was inherited by one person, unless that property has been combined with other marital property or is used in a way that it takes on the legal status of marital property. In dividing personal property, it is best to sit down with your spouse and agree on who gets what. Each should then take the property as agreed, remembering to change titles and names on accounts as necessary. It may be helpful to include the Vehicle Identification Numbers and/or any existing serial numbers for any property in your divorce decree. However, remember that it is a public document so consider any confidentiality/identity issues that may exist. If you cannot decide on your own how to divide the personal property, the Judge will commonly have one party make two lists and allow the other party to choose which list of items she wants.
Real property. Real property is land and anything permanently attached to land, such as a house or buildings. Generally, you will get to keep any real property you brought it into the marriage, it was a gift, or it was inherited so long as you have not commingled it with marital property or otherwise changed the nature of your real property so that it takes on the legal status of marital property. If the home was purchased during the marriage, it will generally be considered marital property even if only one name is on the deed. Often the real property is sold and the money from the sale is divided equally between the parties. However, one person may “buy” out the other by giving them what they would have gotten had the property been sold. The person giving up the house should sign a Quit Claim Deed to the other person once the divorce is final. It may be helpful to include a property description in the decree itself so that you may record the order at the County Recorder’s Office or otherwise use the order to prove change of title to lenders, purchasers, title insurance companies and the like. If you don’t agree on who should get the house, the court will do its best to enter an equitable order. The court may award the home to one party and award to the other party other marital assets of equal value. The court could order the home sold and the equity split, if you have no children. If you have kids, the home might go to the party with custody of the children, at least until the youngest child turns 18, or graduates from high school in the normal course, or the custodial parent remarries, cohabits with someone else or is no longer in the home. At that time the house will be sold and the party who did not reside in the home will get half of the equity as of the time of the divorce; or one party, usually the person who has been in the home, may buy out the other party, usually by paying the cost of half the equity calculated at the time of the divorce. However, remember to do the calculation during the divorce process and include in the final order the amount of equity that will be owing upon the occurrence of one of the events named above.
Retirement/Pension Plans. If both parties have retirement plans, each will generally be awarded their own retirement. However, each spouse is generally entitled to half of any retirement benefits that were earned during the marriage. If you are not the contributor to the plan and get some of the benefits, you must get a Qualified Domestic Relations Order or QDRO. Until a QDRO is signed and approved by the pension/retirement plan, it will not be split. In fact, if you do not successfully complete the QDRO, your share of the pension may not be available when you need it for your retirement, and indeed, may be lost entirely.”6
Alternative Forms of Dispute Resolution
Alternative forms of dispute resolution include mediation, arbitration, and collaborative law. Each of these methods is explained in further detail below.
“The Alternative Dispute Resolution programs encourage the use of ADR to the extent that it serves the interests of the involved parties. It is not intended to replace traditional litigation, only to supplement it, and to provide more flexibility in resolving disputes.”7
Mediation
The Utah State Courts website explains that:
“Mediation is a collaborative meeting in which the disputing parties seek to resolve their differences through the use of a skilled, neutral third party, the mediator.”7
According to Utah Code Annotated § 30-3-39:
(1) There is established a mandatory domestic mediation program to help reduce the time and tensions associated with obtaining a divorce.
(2) If, after the filing of an answer to a complaint of divorce, there are any remaining contested issues, the parties shall participate in good faith in at least one session of mediation. This requirement does not preclude the entry of pretrial orders before mediation takes place.
(3) The parties shall use a mediator qualified to mediate domestic disputes under criteria established by the Judicial Council in accordance with Section 78B-6-205.
(4) Unless otherwise ordered by the court or the parties agree upon a different payment arrangement, the cost of mediation shall be divided equally between the parties.
(5) The director of dispute resolution programs for the courts, the court, or the mediator may excuse either party from the requirement to mediate for good cause.
(6) Mediation shall be conducted in accordance with the Utah Rules of Court-Annexed Alternative Dispute Resolution.8
Advantages of Mediation:
“Mediation has the advantages of being informal, confidential, and collaborative. It proceeds more quickly than litigation, and often results in less expenditures of time and money. The final agreement is not imposed upon the disputants; instead the disputants design it according to their own interests. Finally, it is not an adversarial process, so the parties have the potential to preserve their relationship once the process has concluded.”7
Disadvantages of Mediation:
Mediation may not be appropriate in relationships that have had domestic violence, emotional abuse, or when there is an extreme power differential. According to Utah Legal Services the requirement for mediation “may be waived…for good cause such as having had domestic violence in the relationship.”6
It is also important to note that not all mediators are trained in the law. (10) It is possible for both parties to come to an agreement through the mediation process and later find out that the agreement is not enforceable by the law.
Arbitration
The Utah State Court website explains that:
“Arbitration is an evidentiary hearing, similar to a trial, in which the arbitrator hears arguments, reviews evidence, rules on motions where appropriate, and determines awards.”7
Advantages of Arbitration:
“It is less formal than litigation and somewhat more collaborative in that the parties choose the arbitrator together and agree upon the extent of discovery. It can be convened and conducted more quickly than a formal trial, and it is also confidential. In the case of non-binding arbitration, the award can be accepted and reduced to an agreement, or rejected by the parties…”7
The cost of Mediation or Arbitration:
According to the Utah State Court website:
“Providers set their professional rate. The maximum hourly fee charged by individual mediators and arbitrators is indicated in the Court Roster. Please note mediators charge various fees ranging from $30.00-300.00 per hour. Fees are usually based on experience and background. Most mediation sessions typically run 3-4 hours but may be more or less depending on the issues involved. The fees are usually split among the parties unless ordered or arranged otherwise. For example: A mediator hired at $100.00 an hour conducts a four hour mediation The charge will be $400.00 for the mediation session. If there are 2 parties involved, each party will owe $200.00 to the mediator.”7
Where to find a Mediator or Arbitrator:
A list of qualified mediators may be found online at http://www.utcourts.gov/mediation/roster/index.asp or by phone through the Domestic Mediation Help Line at 1-800-620-6318 (Statewide) or (801) 578-3966 (Salt Lake).9
Collaborative Law
According to Utah Code Annotated § 78B-19-102:
“Collaborative law participation agreement means an agreement by persons to participate in a collaborative law process, a procedure intended to resolve a matter without intervention by a tribunal. Initial requirements are:
- a) persons sign a collaborative law agreement
- b) they must be represented by collaborative lawyers
- c) On the request of another party, a party shall make timely, full informal disclosure of information related to the collaborative matter
- c) the process may include ‘nonparty participants’.”10
Collaborative Law has been practiced in some states, but the process does not seem to be used much in Utah.
Frequently Asked Questions Regarding Divorce:
Do I have to go to Court? “No. You will only have to go to Court if you can not agree on the terms. In fact, the vast majority of cases are resolved without going to Court.”6
May I get immediate orders to help me survive? “You may ask the Court to have a hearing to establish temporary orders that will last while the divorce is pending. You may ask for a hearing at the same time that you file. However, they are not immediate. The court will not enter temporary orders without a hearing. However, they will usually try and schedule a hearing as soon as they may. This may be especially helpful if you have children so they may be taken care of with child support orders, etc.”6
What if I disagree with the Judge’s order? “If you disagree with the judge’s order on one or more issues, you have the right to appeal. This means having a higher court review your case. You must file your appeal within 30 days of the final entry of the decree of divorce. Appealing a case is a complex and technical process and you should consider hiring an attorney to help you.”6
How do I enforce parentage, custody and divorce orders? “Violation of a parentage, custody or divorce order is considered to be “contempt” because the other party is not following an order of the Court. To enforce the provisions, you must file an “Order to Show Cause” asking the court to find that the party not complying. In enforcing the order, the court may fine or otherwise penalize the party not following the order. If the noncomplying party has failed to pay money, a judgment may be entered against that party. The judgment must be collected by the other party through garnishment or attachment and sale of nonexempt property owned by the noncomplying party. Contempt may also result in the noncomplying party being sent to jail. The order is a civil order of contempt and does not go on a person’s criminal record. The paperwork needed to enforce an order may be obtained through the Utah Courts. They have put the forms on their Online Court Assistance Program (OCAP) (www.utcourts.gov/ocap). After having you input all the needed information, this program will personalize and prepare all the paperwork needed to file an action in contempt.”6
What is the difference between a decree of separate maintenance and a divorce decree in Utah? “A decree of separate maintenance divides property, awards custody of children, provides for child support and alimony, but the action is temporary. The decree of separate maintenance does not end the marriage. Fees are the same as for a divorce action. If the parties later decide they want to divorce, all the costs and fees will be incurred a second time for the divorce.”4
What are the time periods and residency requirements for a divorce in Utah? “Either spouse must have been a resident for at least three3 months immediately before the filing. Utah divorce laws require the initial ninety (90) day waiting period as a “cooling-off period” in the hope that the parties can reconcile. A divorce decree typically becomes final on the date it is signed by the Judge which usually occurs a few days after the final papers are presented to him and it is filed by the clerk.”4
May I relocate? “If either parent decides to move from Utah or 150 miles or more from their residence, that parent must provide reasonable advance written notice to the other parent. However, the parent with custody is usually not prohibited from leaving the state with the children. Upon request, the court may schedule a hearing to review the visitation and make changes regarding the visitation. The court will generally consider: 1) the reason for the relocation; 2) any additional costs or difficulty in exercising visitation; 3) the economic resources of the parents; and 4) any other relevant factors. The court may order the moving parent to pay the costs of transportation for at least one visit per year with the other parent, and any additional visits as determined to be fair.”4
Can I date while my divorce is pending? “If, while being legally married to one person, a spouse dates another person this might constitute grounds for divorce or grounds for a counter-suit in the divorce action and may cause friction between the parties. The fact that one spouse is dating while the divorce is pending may give rise to threats that this will prevent the dating spouse from being awarded custody of children. The court may consider this, but this alone probably will not prevent the dating spouse from being awarded custody. As a practical matter, dating while a divorce is pending is usually not a problem.”4
What is a Guardian ad Litem? “The Guardian ad Litem attorney and CASA volunteer coordinate ideas and plans in a viable partnership to ensure that the needs of a child are met in that child’s best interests. It is the court who appoints a Guardian ad Litem.A Guardian ad Litem can be appointed to represent children in custody actions where there are allegations of abuse or neglect, in protective order proceedings and in some criminal actions in the district courts.
One attorney may be responsible to represent over 300 children. Appointed Special Advocates (CASAs), are trained volunteers working with Guardian ad Litem attorneys in the juvenile court. The CASA volunteer is asked to handle only one case at a time so intense time may be spent with the child to obtain factual information to assist the GAL to represent the child’s best interests.”11
“It is the Guardian ad Litem’s duty to stand in the shoes of the child and to weigh the factors as the child would weigh them if his judgment were mature and he was not of tender years.”12
References
1http://utcourts.gov/howto/family/#Divorce
2Utah Code Annotated § 30-3-1
3Utah Code Annotated § 30-3-5.1
4http://utahlegalclinic.com/divlaw.html
5Utah Code Annotated § 30-3-10
6http://www.utahlegalservices.org/public/self-help-webpages/domestic-law-handbook#Divorce
7http://www.utcourts.gov/mediation/faq.html
8Utah Code Annotated § 30-3-39
9http://www.utcourts.gov/mediation/roster/
10Utah Code Annotated § 78B-19-102
11www.utcourts.gov/specproj/casa/moreaboutus.asp
12 J.W.F. v. Schoolcraft [763 P.2d 1217,1222 (Utah App. 1988)]