Alternative Dispute Resolution (ADR)
Utah Child Custody
Child Support in Utah
Asset and Debt Division In Utah
The Divorce Process In Utah
- ADR Available: Yes
- Fault or No Fault: Both
- Parenting Plan Required: Yes
- Property Distribution: Equitable
Grounds For Divorce
Utah has both no-fault and fault divorce. For a no-fault divorce it is not necessary to prove a spouse’s behavior is the reason for the demise of the partnership. However, one of two conditions must exist – mutual agreement of irreconcilable differences or the couple must have been living separately for three years.
This means the couple must not be cohabitating or the motion could be dismissed. It is more common for couples taking the route of no-fault divorce in Utah to cite irreconcilable differences rather than living apart for three years.
Fault divorce requires that proof is given to the court and must be in relation to the following grounds:
- Desertion for one year
- Impotence at the time of the marriage
- Willful neglect
- Habitual drunkenness
- Felony conviction
- Cruel treatment
- Incurable insanity
The Divorce Types
The official court document to end a marriage in Utah is called a Petition for Divorce. When the judge signs the paperwork, couples are granted a Decree of Divorce. The person asking for the divorce is called the petitioner and the other spouse is the respondent. The two types of divorce are:
- Uncontested. The petitioner and the respondent agree to all the issues surrounding child support, visitation, marital property and alimony, among other relevant topics. This process can be faster than in a contested divorce.
- Contested. This type involves spouses that can’t agree on one or many issues within divorce. A court process is often required if matters aren’t resolved.
A divorce petition has to be served within 120 days of being filed with the court. The respondent has 20 days to answer the petition. If an answer is not given in the allotted time, the petitioner can seek a default judgment and may be awarded with everything that is being requested in the divorce petition.
Divorce Waiting Period
In the state of Utah there is a 90-day waiting period after the divorce is filed for the termination of the marriage to be final. This period can be waived in some cases that involve children and the spouses are in agreement on all issues. Filers must be a resident of the county in which the petition is being pursued and be a resident of the state of Utah for at least three months.
A divorce always has the potential to be complicated, but a military divorce can be even more difficult. One of the reasons for this is because there are federal laws in place that govern military members and will affect the procedure of a divorce. Under the Servicemembers Civil Relief Act (SCRA), a military member is protected from being divorced without notice while on active duty or deployed.
Military personnel must be served with a petition for divorce in person. If a servicemember is deployed, however, this can impede the process. A divorce can legally be delayed for the entire length of a deployment. There are other federal rules and regulations that will change the way a military divorce is handled. It’s important to seek an experienced divorce attorney that is knowledgeable on military laws.
In Utah the courts recognize the benefits of alternative dispute resolution (ADR) when couples are dealing with the difficult event of divorce. In ADR the goal is to lessen conflict and speed up the process, thus saving money.
- Arbitration. A neutral third party, sometimes a judge, will listen to both sides and then decide on the outcome. This process can have either binding (legal) or nonbinding results. When issues are not resolved in nonbinding ADR, a court trial may be the next step.
- Mediation. A neutral third party helps to resolve the issues in ending the marriage, but the decisions remain with the spouses. This format allows couples to work through divorce issues in a somewhat informal environment and can help preserve the relationship between spouses.
When couples have the power to make the decisions over their lives, they are more likely to abide by the agreements. Another benefit to ADR is that there is more time to explain each person’s viewpoint than in a court proceeding.
A divorce is a highly personal experience. A path that works for one couple may not be the right decision for another pair ending a marriage. In Utah, there are alternatives to divorce such as legal separation or annulment. It’s important to know the different ways to end a marriage in order to select the right option.
A legal separation can be thought of as a trial run to divorce. It is similar to a divorce in that issues such as spousal support, child custody and property division are handled; however, in a legal separation the marriage is not dissolved. Other reasons to legally separate could be for religious or financial considerations. Contrary to what many may think, a legal separation can take as long and cost as much as a divorce.
Being legally separated means you can’t marry anyone else until you go through further steps to end the union.
An annulment ends a marriage by saying the union is invalid. In some instances, the marriage was never legal from the start as in cases involving bigamy or incest. Essentially an annulment treats the marriage as though it didn’t legally happen. The conditions to annul a marriage are:
- A spouse refused to consummate the marriage.
- The spouses were the same sex.
- A spouse created a misrepresentation, for example, by making up a pregnancy claim.
- A spouse was under the age of 18 and without parental consult.
Child Custody Determinations
When a marriage ends, the task of protecting children from any potential fallout is likely a goal for each parent. In Utah, creating a parenting plan is required and in doing so, parents are able to think in advance on resolving future child-related matters. When determining custody, a judge will start with the assumption that both parents are in the best interests of the children; however, this court official can deny custody for unhealthy situations such as illegal drug use.
Utah has several types of child custody:
- Legal custody. This type of custody allows a parent to be a decision-maker in the educational, religious and medical choices of the children.
- Physical custody. This type of custody refers to where the children live.
- Split custody. In this type, each parent has sole physical custody of one of the children from the marriage.
When parents can agree with one another on custody and visitation, it can save time and frustration. The court is likely to grant the wishes of the parents when they can decide on the best interests of their children.
If a parent is awarded sole custody, the other person may receive visitation, which is essentially defined as the time spent with the children by the noncustodial spouse. In Utah, visitation and custody, once determined, can be different for each child in the marriage, such as in split custody.
Visitation usually works on a regular schedule so that children can be assured of having time with both parents. Good communication is required between the parents to have a flexible visitation schedule.
When a marriage ends, or a parent dies, time spent with the grandchildren can become sparse or nonexistent for the children. Grandparents can petition the court to visit with their grandchildren; however, they must prove to the court this action is in the best interests of the children.
In Utah, grandparents must establish they are “fit and proper” in order to be granted visitation privileges. If, for instance, there is a history of alcoholism or mental imbalance, grandparents could be considered unfit by the court.
The court uses the combined gross income of both parents and factors in the amount of parenting time that has been granted to each spouse as a starting point to calculate child support.
If the parents share equal time with the children, the person with the higher income may pay support to the other spouse. Other factors may be used as well, such as the debt of each parent. The Utah court system has separate support calculators for divorcing parents which are based upon the three different types of custody – joint, sole and split.
Child Support Enforcement
Falling behind on child support or stopping payments is a serious action in Utah with great consequences. When a parent is delinquent in child support, he or she may be subject to things such as:
- Income withholding
- Credit reporting
- Intercepting tax refunds
- Suspending a driver’s or professional license
- A levy against bank accounts
- A lien on property
If a significant life occurrence has made it hard to pay child support, such as the loss of a job or a debilitating injury, it may be possible to amend previously agreed upon payment amounts.
Establishing paternity is the only way in which a father can have legal rights concerning his children. There are many benefits to determining paternity that are advantageous to both the father and the children. When paternity is established, a father is able to do things such as:
- Have a voice in custody and visitation arrangements
- Play a role in making important life decisions for the children
- Pass along social security, inheritance and veterans benefits to the children
- Include children on health coverage
- Be part of an emotional support system to the children
Property types in Utah can be defined as either marital or separate. Typically, debts and assets acquired in the marriage belong to both parties. There are some exceptions to this rule, including:
- If a prenuptial agreement is in place
- If the property was owned before the marriage
- If the property was a gift or an inheritance
Division Of Property
Utah is considered an equitable property division state. When a couple gets divorced the division of property is not split in equal halves; instead, a reasonable and fair amount of the assets and debts are given to each spouse. The court may factor in the individual needs of a spouse in the determination, especially if the marriage had been long-term. Some of the assets and debts that are divided include:
- Real estate
- Household items including furniture and clothing
- Retirement assets
- Stocks, bonds, 401(k)s and similar accounts
- Collectibles such as a stamp collection
- Credit card debt and other liabilities acquired in the marriage
The court has discretion on property division. Although the court has no clearly established definition of the number of years of a short marriage, the length of marriage could play a role in property division. For instance, when a marriage didn’t last very long, a judge may split property according to what each spouse brought into the marriage.
Alimony refers to providing a spouse with financial support. Other names for alimony are spousal support and maintenance. Spousal support is often awarded when one spouse will have a hard time being financially stable after the divorce. Obtaining alimony isn’t a simple process and for this reason, getting sound legal information from a divorce lawyer can be invaluable.
The court will use certain factors to determine if alimony will be awarded. Some of the points are:
- The financial condition of each spouse
- The earning capacity of each spouse
- The duration of the marriage
- Whether the recipient spouse has custody of the children
- Marital misconduct
Prenuptial and Postnuptial Agreements
Couples entering into marriage may have enacted a prenuptial and postnuptial agreement, protecting one or both spouses in the event of a divorce. A prenuptial agreement is constructed before the marriage is legal and can help determine ownership of certain property in the event of divorce or death. In many regards both agreements can be planning tools for those with a mass of property and wealth or children from other relationships.
Changes in life can happen at any given point. Some of these circumstances can significantly impact the financial status of an individual and make it necessary to alter previously arranged contracts. Post-divorce modifications are changes that can happen to a spouse such as:
- Inability to work due to injury
- Filing for bankruptcy
- Losing a job
- A job relocation
Some of the areas that might be affected include child support and alimony payment amounts, the residency of the children and the visitation schedule.