Frequently Asked Questions About Divorce in Utah

 

 Is “fault” a factor in my divorce.

 

Not really.  Utah is a “no-fault” divorce state and most people claim there are simply “irreconcilable differences” as causes for the divorce.  “Fault” may come into play when determining alimony; however, in reality, most judges simply do not want to hear about who’s to blame for the divorce.

 

What is an annulment? What is legal separation?

 

Annulment:   In an annulment, the court declares that the couple was never married because the marriage was void under Utah law or the marriage resulted from fraud (unless there are children born during the marriage). For example, Utah law does not recognize marriages:

-Involving incest

-Where one spouse has a living, undivorced spouse

-Where an unauthorized person performed the ceremony

-Where one spouse's divorce to a previous spouse has not been finalized

 

Legal separation:   The parties live separately, but remain legally married to one another. The couple's rights and duties to each other are set forth in a Decree of Legal Separation, which covers matters such as custody and child support, spousal support, division of property and payment of debts. The legal procedures are similar to those for divorce, except that there are grounds for legal separation only when one spouse is deserted by the other, or when a person refuses or neglects to provide for his or her spouse. If the couple later decides to divorce after they have been legally separated, they must file a separate action for divorce.

 

What are the residency requirements for a divorce?

 

At least one party must have been a resident of the county where the divorce was filed for a minimum of three months immediately before filing the divorce petition.  If there are children, generally the children must have resided in the state for a minimum of six months.

 

 

 How Do I Get a Divorce?

 

A divorce is granted by a judge after the necessary paperwork has been submitted to the court. You may file the paperwork yourself, or obtain the assistance of a lawyer. If you wish to do the paperwork yourself, you may access forms via the internet.

 

What Can a Lawyer Do for Me?  

 

Even a simple divorce requires many documents. The lawyer is responsible to help you through that process. It is the lawyer's role to give you up-to-date information on laws involving children, support and property division. The lawyer acts as your advocate and assists you in negotiating an agreement that is in your best interest and that will minimize problems in the future. If the agreement cannot be reached, the lawyer will help represent you at court appearance. 

 

Who Decides What Settlement I
Accept – Myself or My Lawyer? 

 

The client must always make the decision about settlement terms.  The lawyer's role is to advise whether or not in his or her view, the proposed terms are reasonable. The lawyer is required to submit every settlement proposal to the client for the client's review and decision. If you use the services of a mediator, the client must still approve all terms of the settlement.

 

What is Divorce Education?

 

After filing a complaint for a divorce and receiving a case number, parties who have a child or children are required to attend a mandatory course on their children's needs. This divorce education course is a prerequisite to receiving a divorce decree, unless a court determines that attending the course is not feasible or in the best interests of the parties.  The course instructs both parties about the divorce and its impact on their children, their family relationship and their financial responsibilities for their child or children. The 2007 fee for the class is $35.  More information and class schedules can be obtained on the internet by visiting: http://www.utcourts.gov/specproj/dived.htm.

 

What Kinds of Child Custody are
There / How will Custody be Decided?

 

Utah recognizes several custodial arrangements for minor children.  Either party can be awarded the "sole" custody of the children.  That means one parent has physical custody of the children, the other parent has parenting time (visitation), and the parent with sole custody makes the major decisions regarding the children's lives.

 

"Joint" custody can be divided into two different types of joint custody.

 

Joint "legal" custody can have several interpretations and, minimally, means that both parents make joint decisions regarding major issues affecting the children.  Joint legal custody has nothing to do with the amount of hours or time either of you spends with your child(ren).

 

Joint "physical" custody means that the parties share physical time with the children and that the children live in both homes. Technically, one parent must have the children at least 111 (preferably 130) overnights per year.

 

Either form of joint custody usually works best when the parents are willing to work together to address the needs of the children. Joint physical custody would normally require that the parents live in the same town or general area.

 

“Primary” physical custody means the children reside (have overnights) with one parent less than 110 nights per year.  This type of custody can be combined with joint legal custody (decision making)

 

Parents can fashion any custodial or parenting time arrangement that they believe is in their child(ren)'s best interests and the court will allow that arrangement to be part of the Decree of Divorce.

 

What Type of Parenting Time (Visitation) Can I Expect?

 

Utah has a "standard minimum schedule of visitation" which allows contact one evening per week, alternating weekends (Friday through Sunday) weekly contact, alternating holidays, and alternating weekends, overnight, for children five and older.

 

Parties can vary from the standard minimum schedule and create any schedule of visitation that they deem appropriate for them and the child(ren). Schedules often have to vary depending on the ages of the children and how far apart the parents live.

           

How is Child Support Calculated?

 

Utah has enacted Child Support Guidelines that are used by the courts to calculate a parent's child support obligation based upon their incomes.  You will need to input your “adjusted gross income” and your spouse’s “adjusted gross income.”  The table will calculate the amount of child support to be paid by the non-custodial parent or higher wage earner (in joint physical custody arrangements).

 

In addition, the guidelines require parents to provide medical coverage for their minor children, if it is available, and to share the costs of the children's portion of the premium in addition to non-covered expenses, including deductibles and co-payments, for the children's medical care.

 

Finally, the courts require the parties to share work‑related child care expenses.

 

Child support continues until the child is 18 and has completed high school, whichever occurs last.

 

Can my Child Support be Increased / Decreased in the Future?

 

The courts, upon petition by either parent, may increase or decrease the child support obligation if significant changes in income or other circumstances have occurred since the entry of the Decree of Divorce.  The court may review this every three years.

 

Does Utah Allow Alimony and Who
Can Get It?

 

Either party may request and be granted alimony. Regardless of gender, alimony may be ordered on a temporary basis, pending trial, as well as for a period of time equal to the length of the marriage after entry of the Decree of Divorce.

 

In determining alimony, the courts consider at least the following factors: 

 

1. The financial condition and needs of the recipient spouse. This includes the monthly debts and obligations which the recipient spouse is required to pay and the availability of funds to pay these debts.  

 

2. The recipient's earning capacity or ability to produce income.  This includes income received or available from all sources; the past employment history; ability or inability to work; passive income received; etc.

 

3. The ability of the payor spouse to provide support. This includes the income received from all sources by the payor spouse examined against all of the debts and obligations which the payor spouse is required to pay. Debts may not be incurred, as a general rule, to defeat alimony.

 

4. The length of the marriage. The longer the marriage, the greater the likelihood of an alimony award. 

 

5. Whether either party has custody of minor children requiring support.

 

6. Whether the recipient spouse works or worked in a business owned and operated by payor spouse.

 

7. Whether the recipient spouse contributed to any increase in the payor spouses skill, paid for education received by payor spouse, or allowed payor spouse to attend school during the marriage.

The courts, as a general rule, look at the standard of living that existed at the time of trial or separation in determining alimony.  In marriages of short duration, with no children conceived or born, the court may consider the standard of living that existed at the time of the marriage. There are times when the courts will attempt to equalize the parties' respective standards of living.  Alimony may be reviewed and modified as conditions change and as warranted.  Alimony terminates automatically upon remarriage, cohabitation, or death of the recipient spouse.

 

How is Property Divided?  

 

In Utah, the law recognizes that spouses who works in the home and outside the home both contribute to the property acquired during the marriage, regardless of the income source. Utah requires an "equitable" (though not necessarily equal) division of such property, depending upon how long the marriage lasted, the age and health of the parties, their occupations and the amounts and sources of income and related matters.

 

The courts have the power to apportion all property owned by either or both of the spouses, regardless of whose name it is in or where it is located, and there are special rules for apportioning property owned by the spouses prior to the marriage or received by gift or inheritance.  Usually, these properties are considered separate.

 

Who Pays the Debts Incurred During
the Marriage?

 

Usually, the parties agree which of them should pay each of their joint debts. If they cannot agree, the Court will decide who pays which debt.  However, the Decree (court ordered or agreed upon by the parties) is binding only between the parties.  Creditors are not required to honor the apportionment of joint debts in the Decree of Divorce. Thus, if the spouse who is supposed to pay fails to do so, the creditors may seek payment from the other spouse – then the paying spouse has to try to collect the money from the one who was supposed to pay.

 

How Long Does is Take to Get a
Divorce in Utah?  

 

If there are no children, Utah law imposes a 90‑day waiting period, which begins to run the day after the Petition to Divorce is filed with the Court.  Summit County will usually waive the waiting period. Wasatch County will not.  If your divorce is completed via an agreement, you live in Summit County, and you have attended the divorce education class, you can be divorced literally days after filing the Petition for divorce and a Stipulation (if necessary).

 

All people seeking a divorce in Utah must attend at least one session of mediation prior to seeking court involvement.  It is also a requirement of Miller, Vance & Thompson that their clients attend at least one mediation session prior to litigating their divorce issues unless there is an emergency matter that requires immediate court intervention.

 

If the parties do not reach an agreement, then they must proceed to hearings and, potentially, a trial before the assigned judge.  The divorce process can last for days, months or even year.