Filing for Divorce and Related Issues in Utah

What is Divorce and What are the Rules About Divorce in Utah?

A divorce ends the marriage and all direct legal relationships between the couple, except those specifically written out in the divorce decree. These may include such things as spousal support, parenting arrangements and support of children, division of property and payment of debts. The Utah divorce laws allow for no-fault divorce on the grounds of irreconcilable differences. 
 

What If One Spouse Wants a Divorce and the Other Spouse Doesn't? 

There is no way to prevent a divorce in Utah if one spouse wants one and the other one doesn't. 
 

How Do I Get a Divorce? 

A divorce is granted by a judge after the necessary paperwork has been submitted to the court and all required appearances before the judge are completed. In some cases it is not necessary to be physically present in the court to get a divorce. You may file the paperwork yourself, or obtain the assistance of a lawyer.

Do Parties to a Divorce Need to Take Divorce Education? 

After filing a complaint for a divorce and receiving a docket 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. 

Who Makes the Decisions About Child Custody and Support, Property Division, Special Maintenance, and Other Matters?

Utah law encourages the couples to work out these decisions between themselves a as much as possible and create a written agreement, often with the assistance of their lawyers. A growing number of people have been trained to act as mediators to assist couples in these negations. Whatever reasonable agreements the couple make, will be sanctioned by the court. 

If the couple cannot agree on one or more of these issues, it will be necessary for the court to make the decision for them. In many courts, there are commissioners who specialize in divorce matters who will first hear the issues. If the matter goes to trial, the judge will make the final decision. There is no jury in divorce cases in Utah. 

What is Legal Separation? What is the Difference Between Legal Separation and Divorce? 

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

What Can a Lawyer Do for Me? 

Even a simple divorce requires many documents and may require at least one appearance before the judge. 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. 
 

Can the Same Lawyer Represent Both Me and My Spouse?

No. There is always a conflict of interest between spouses. A lawyer cannot adequately represent both sides in a divorce. 
 

What Does a Divorce Cost?

Costs and fees for a divorce can vary greatly. As of 1997, the filing fee for a divorce is $82.00. A counterclaim by the other party costs $60.00 to file. There may be other costs such as service fees by the sheriff or constable. Some lawyers charge a flat rate for divorces, depending on the amount of work involved. Other lawyers charge an hourly fee. Contact the particular lawyer you're interested in to inquire about costs and fees, and be sure you have a complete understanding of the charges and billing rates. There are many qualified lawyers available. Be sure you find one with whom you are comfortable. 
 

If I "Settle" My Case, 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. 

Child Custody - What Kinds of Child Custody are There and 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 and 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 does not effect the physical residence of the children. Joint "physical" custody means that the parties share physical time with the children and that the children live in both homes. 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. Sometimes, parents will agree to a joint custody arrangement that designates one parent as the "primary" parent. Parents can fashion any custodial or visitation arrangement that they believe is in their children's best interests and the court will allow that arrangement to be part of the Decree of Divorce. 

If sole custody is awarded, the non-custodial parent is awarded "visitation" with the children. Utah has a "standard schedule of visitation" which allows weekly contact, alternating holidays, and alternating weekends, overnight, for children five and older. Parties can vary from the standard schedule and create any schedule of visitation that they deem appropriate for them and the children's needs. Schedules often have to vary depending on the ages of the children and how far apart the parents live. Visitation to be exercised with children under five is dependent upon what is in the best interests of the children. 

Custodial parents may not withhold rights of visitation if child support is not being paid. Likewise, child support is not to be withheld if visitation is being denied. There are sanctions that the court can award a custodial parent that prevents visitation. 

There is a mandatory two-hour course for divorcing parents with children, which instructs both parties about the divorce and its impact on their children, their family relationship and their financial responsibilities for their child or children. This class must be attended prior to a divorce being granted.

Can I Relocate?

Utah law requires that if either parent decides to move from Utah or 150 miles or more from the residence, that the parent must provide reasonable advance written notice. The right to relocate is an issue that probably should be decided at the time that custody and visitation are addressed. A custodial parent usually is not prohibited from leaving the state with the children. 

How is Child Support Decided, How Long Does it Continue, and Can it Ever be Changed?

Utah has enacted Child Support Guidelines that are used by the courts to calculate a parent's child support obligation. The guidelines consist of three components: base child support, medical care and child care expenses. A table determines the combined support for the children. A support obligation is shared between the parents according to their incomes. The non-custodial parent pays the custodial parent child support. 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. 

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. 

Utah courts generally set child support in compliance with the guidelines, although in unusual circumstances, the courts may order a higher or lower amount. Child support amounts can be agreed upon by the parties, but the courts must approve their agreement before it becomes an enforceable order of support. 

An order requiring a non-custodial parent's employer to withhold the child support amount from the parent's earnings may be entered by the courts unless the parties agree to another method of payment. 

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 longer period 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. 

The courts may consider the fault of the parties in determining alimony. 

The courts, as a general rule, look at the standard of living that existed at the time of 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 or cohabitation by the recipient spouse. Alimony is not to be ordered for a duration longer than the length of the marriage, except in extenuating circumstances. 
 

How is Property Divided? 

In Utah, the law recognizes that spouse 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. If the parties divide their property by agreement, the judge must review the decision to be sure that it is equitable; however, the division of property cannot be reopened after it is final, except under a few very rigid circumstances. 
 

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, then the court must decide. However, the parties' agreement or the courts' decree are binding only between the parties. Utah law allows for notice to be given to creditors as to which party is responsible for debt, however, creditors are not required to honor the apportionment of joint debts in the Decree of Divorce are agreement. Thus, if the spouse who is supposed to pay fails to do so, the creditors may seek payment from the other spouse. Then he or she 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? 

A Decree of Divorce can be granted immediately if the parties have children, have reached an agreement, and have both attended the Divorce Education Class. Otherwise, Utah law imposes a 90-day waiting period, which may be waived for good cause. 

If the parties do not reach an agreement, then they must proceed to hearings and, potentially, a trial before the assigned judge. The divorce can pend for a matter of months or even the course of a year. Prior to proceeding to a pretrial or trial, the parties to a divorce must either engage in mediation, arbitration, or view a video tape discussing the participation in "Alternate Dispute Resolution" programs, which are designed to afford parties alternatives to court proceedings and litigation. 

How Do I Make a Claim of Paternity?

If you would like the court to issue a judgment of paternity for your child, you may file a Complaint. After the complaint has been filed, the court will notify you and the other party of a hearing date. If paternity is disputed at the time of the hearing, the court may order a blood or genetic marker test to determine paternity