Family Law FAQs – Frequently Asked Family Law Related Questions in Utah

The chief difference between a separation and a divorce is that you remain legally married if you are separated. Many people choose separation for religious and other reasons. There may be tax benefits and it leaves the door open to reconcile in the future. But, you will need to go through the divorce process to resolve any property issues and terminate a marriage.

You need to establish a minimum 3-month residence in Utah to file a divorce petition. Other family law matters may not have a residency requirement. Talk to an attorney about specific issues.

In a no fault divorce, only one party needs to file a petition and you don’t have to prove either person was responsible for the breakdown of the marriage. In the divorce filing, you will sign an affidavit that states the marriage is broken beyond repair. You will need to meet residency criteria to file and attend at least one mediation session in most cases. There is a 90-day waiting period before a final decree can be issued.

Utah is one of the few states that uses the “equitable distribution method.” Long-term marriages often see a 50-50 split. In brief unions, the court tries to put people back to the position they were in before marrying. Couples can negotiate a settlement agreement and a judge will review and consider it for fairness.

Marital support can be ordered to a husband or wife depending on financial need. These payments can be ordered on a temporary basis while the divorce is pending or for the same length as the marriage, with some exceptions.

Factors for determining alimony include debt, standard of living, child care costs, earning capacity and harm among others.

The short answer is: Yes. The court will look at the financial situation of both parties and may issue a temporary order that includes child support and alimony. This may be modified or terminated in the final divorce decree.

There are specific instances in which you can ask the courts to modify its order. There would need to be a substantial change in circumstances.

For child support, loss of employment or illness may allow you to have the court modify the amount. Alimony modifications can be based upon remarriage or an unforeseen circumstance.

The courts follow a basic rule that these issues are based on “the child’s best interests.” With that in mind, placement tends to be awarded to the primary caregiver as long as they are of good moral character and can provide a stable and fruitful home life for the child.

Courts recognize that strong parent-child bonds are important and assign reasonable visitation so that the minor maintains a healthy relationship with both parents.

The court may deny visitation when a parent engages in criminal or detrimental behavior.

If one of the parents has a health care policy through employment, the courts prefer that the child remain on the policy.

Deductibles and copays may be shared between the parents or rolled into the child support and alimony decision.

It may be possible to adopt a child if you are married to the parent under certain circumstances. Either the other biological parent is deceased or agrees to waive parental rights. If the non-custodial parent does not consent or cannot be located, you would need to present a case for the termination of parental rights.

When a parent removes a child without knowledge or permission of the other parent or courts, that is generally referred to as “custodial interference.” The basis of the interference is denying a parent rightful custody or visitation. Law enforcement regards it as a high-level felony.

In 2013, same-sex marriage became legal in Utah and gay couples enjoy the same rights, privileges and responsibilities as heterosexual couples. Same-sex couples must be over 18 years old and pass the same adoption scrutiny as others. The process can be rigorous and the courts place the best interests of the child before the wishes of potential adoptive parents.

Household furniture, appliances, etc., etc.–until you consider how much you have. Sometimes a spouse will say, “Oh, he/she can have it all” but they don’t realize that such property comprises the bulk of what most people own is invested in their personal property. The cost of replacing such property can be huge, and take a long time.

Don’t just assume that mom always gets the kids, especially because it is Utah, so why fight for something more than every other weekend. Dads for years have been getting more in the way of custodial rights than they used to do; but keep in mind that custody disputes are costly.

Don’t Get Into a Fight Over Anything If you Can’t Afford to Go the Distance, Especially Custody Fights

Don’t spend a lot of money for attorneys, etc., and then have to stop part way through because you didn’t recognize the cost involved earlier in the case.

Keep Your Kids Out of Discussions About Adult Issues, Including Custody.

Emails, text messages, keep a journal, keep a calendar of all visits with kids, etc., especially if child custody is going to be an issue.

Using mediation and/or a parenting coordinator early in a case MAY eliminate issues, especially financial issues, or custody where there is not a great divide in positions. Keep in mind that custody of children is usually the biggest stumbling block to an early settlement because parents tend to dig in their heels on this issue, and it takes something significant to get them to budge.

1. Be careful how much money you give the other spouse after the separation and before court. You really need to discuss this issue with an attorney so you are not paying too much or too little. This pertains to both child support and what may be considered alimony or spousal support.
2. Make sure you deal with who claims the kids as dependents for tax purposes.
3. Be careful with the on-line divorce papers. We handle a lot of cases where clients put the wrong things in those papers, or the other spouse puts things in that are more favorable to that spouse, all without being noticed. The on-line papers are overly lengthy and detailed, so it is easy for a spouse to slip in a small paragraph that can cause great problems to the unsuspecting spouse. We do piecemeal or unbundled work, so we will go over papers you are doing on your own at an hourly rate, without the client needing to hire an attorney for the full case, so make sure papers are reviewed by an attorney.
4. If you go to mediation you MAY want to have an agreement subject to review by an attorney, but not always. You need to know when you want that and when you don’t.
5. Be mindful of protective orders. They can have immediate and serious consequences. Spouses will fabricate stories to get custody of kids, possession of the home, control of a business, etc. If a protective order is issued do NOT accept an invitation from the other spouse to meet, talk, email, etc., unless it is allowed by the order specifically.
6. If separation is contemplated get advice before you are the one who leaves the marital home.
7. Law is an area where fees are hard to estimate because of the different issues in each case, different personalities, different needs of parties, issues working with the other side, etc. Costs can be driven up by these and other forces that are out of control of your attorney. This applies to all areas of the law.
8. Many people assume that since they are a good and virtuous person, whose position in a legal dispute is highly meritorious, they should win. It doesn’t work that way. Judges and juries don’t know you. Just because you feel your cause is just doesn’t mean others see it that way. This is a huge mistake many people make going into any type of legal action. Many times the decision from a judge is going to come down somewhere between the positions of the two parties.