Divorce and Custody Information

Summary of Terms and Issues

1.               RESIDENCY – State, City & County in which you now live and the court in which you are filing.  Jurisdiction and court venue are determined according to length of residency of the parties and the “home state” of the children.

2.               MARRIAGE STATISTICS – Date, City, County & State of Marriage.  The court also requires information on prior marriages and educational backgrounds of both parties.

3.               GROUNDS FOR DIVORCE – Many available reasons for a divorce, but most choose irreconcilable differences.  Utah Statute cites the following legal grounds for divorce:

4.               ISSUE OF MARRIAGE – Children, Date Born, Gender, etc.

5.               CUSTODY – Who will be the primary caretaker & who will exercise parent-time (visitation).  Decisions regarding custody and parent time should primarily revolve around the best interest of the children and revolve secondarily around the schedules and availability of the parties.  In most cases, parental care trumps surrogate care when the primary custodian is not available.  The common types of custody include:

                                      i. Sole Physical Custody – The parent who the child or children live with and who has complete rights to keep the child.  (Very commonly used subject to parent time with non-custodial parent)

                                    ii. Sole Legal Custody – only one parent has the right to make decisions for the child including medical treatment.  (Not used often – too limiting).

                                  iii. Joint Physical Custody – Parents share the child as equally as possible and try to raise the child in a way that is equal.  (Trend toward joint parenting or co-parenting because it is generally in the best interest of the children.  Works best when parties live close together, usually within the same school district.  Another option is Sole Physical Custody with extended parent time to the non-custodial parents).

                                  iv. Joint Legal Custody – allows both parents to make decisions for the child while in their custody and during parenting time.  (Used frequently and recommended in most situations.  Subject to joint parenting plan.)

                                    v. Supervised Parent Time – done primarily when one parent presents a threat to the health safety and welfare of the parties’ minor child or children.

6.               PRIOR AND CONCURRENT PROCEEDINGS – Utah law requires the petitioner in a divorce action to disclose any other court proceedings regarding the parties and the parties minor children, including the status and disposition of those cases.  (Is there a case going in juvenile court involving the children or a case in any court currently that involves either of the parents or the children at issue?  Is there a protective order case previously filed or pending?

7.               CHILD VISITATION OR PARENT TIME – Driven by statute, but may have limitations based on parental behavior.  Unless there is a specific finding and order to the contrary, a non-custodial parent is entitled to the minimum parent time outlined in the statute.  A workable parent time plan can be agreed upon by the parties at mediation or through the assistance of counsel. 

8.               DIVORCE EDUCATION CLASS FOR PARENTS - Pursuant to U.C.A. §30-3-11.3 and 11.4 , As Amended 1992, Both parties are required to attend a two (2) hour course entitled, “Mandatory Educational Course for Divorcing Parents”, and a one (1) hour course entitled, “Mandatory Divorce Orientation Course” unless waived by the Court Pursuant to U.C.A. §30-3-4(c), before the divorce can be granted, which courses must be completed within forty-five (45) days of the receipt of this notice, and only then (unless waived) and after filing of a Certificate of Completion can the Court consider waiving the mandatory ninety (90) day interlocutory waiting period, if requested, and enter a Decree of Divorce that would be final and absolute upon entry Pursuant to U.C.A. §30-3-7.  Arrangements can be made to attend the class by calling the court in which this action is filed.  The course is available on video for out of state parties.

9.               CHILD SUPPORT – Based on the combined incomes of both parties and driven by statute.  Usually paid to the custodial parent, however in joint custody situations the calculation is different and may result in neither party paying the other party anything.  Parties are encouraged to determine the custody arrangement which is in the best interest of the children then compute the child support accordingly despite the obvious temptation to seek the custody arrangement with the greatest financial incentive.      

10.           DAYCARE EXPENSES – Divided equally, and available for reasonable work or education related expenses and any others you may agree on.  Usually the parent who needs to get daycare or babysitting must first offer the time to the other parent which is called the right of first refusal.

11.           HEALTH AND ACCIDENT INSURANCE – One party usually provides and the other party usually must pay for one half of the premium to cover the children alone.

12.           SPOUSAL SUPPORT (ALIMONY) –The court considers both the need of the party seeking support and the ability to pay of the other party.  The court will also consider the ability to earn income of the party seeking support payments.   More commons in marriages of longer duration, particularly when there is a large disparity in income.   Most common when one party puts another through a school or diploma. Spousal support can be awarded for a term not to exceed the actual length of the marriage and terminates upon the marriage or cohabitation of the party seeking support.

13.           INCOME WITHHOLDING – A method of collecting child support, done through the Utah Office of Recovery Services (ORS).  Has a monthly fee for collecting, however they keep immaculate records.  ORS will engage in collection efforts and when necessary institute contempt proceedings if child support, spousal support or court-ordered judgments within the decree are not paid. 

14.           INCOME – Based on Current or historic incomes.  You cannot voluntarily reduce your income by quitting your job.  Overtime is not typically included unless it is consistent and likely to continue.

15.           PERSONAL and MARITAL PROPERTY – Utah law requires the equitable divisions of property.  You get what you brought into the marriage and typically receive all property and money left to you in a Will or other Testamentary Device.  The remainder of the property acquired during the marriage is divided fairly or equitably (not necessarily equally as Utah is not a community property state).  However, remember not to over-value items, do not attach emotional values unless you are willing to trade something more to keep a specific item.  Parties are encouraged to divide personal property on their own as this saves time and money.  If necessary, disputes over division of personal property can be handled in mediation.  Do not dispose of, sell, or encumber any marital property during the divorce proceedings unless you have an agreement in writing. 

16.           REAL PROPERTY – if purchased during the term of the marriage, it is divisible.  The home can be sold with the parties dividing the equity proceeds, one party may buy the other party out, or an agreement can be reached to settle the matter.

17.           FINANCIAL ACCOUNTS – At this point it is wise to open a new separate account to keep track of what you have.  The parties may use a joint account to pay the regular marital debts until they are divided.

18.           RETIREMENT & INVESTMENT ACCOUNTS – Pursuant to Utah law all assets acquired during the marriage are divisible and this includes all investment accounts, retirement accounts, thrift savings plans as well as any other account not listed here.

19.           DEBTS AND OBLIGATIONS – Even though you are separating, these must be paid to avoid bad credit and debt collection actions.  You will need to decide who can pay for what and when.  At the termination of the divorce the debts will be divided equitably and you can each go your own way.  As a practical matter it is advisable to divide the debts with each party paying specific debts in their entirety if possible, rather then both parties paying a portion of all the debts.  This can help avoid certain credit problems by having debts separated into one party’s name only.  Utah is not a community property state and therefore debts are divided “equitably” not equally. 

20.           TEMPORARY RELIEF – Temporary orders can be obtained from the court to address financial, support and custody issues while the action is pending. Temporary orders ensure there is an order in place to protect assets, establish temporary custody and support and to determine who pays ongoing bills while the case is litigated.

21.           COSTS AND ATTORNEY FEES – Unless the court orders otherwise, each party is liable for his or her own attorney fees and court costs.  The filing fee is paid by the petitioner, however the respondent will have to pay a filing fee if a counterclaim is filed. We can seek an order for the opposing party to pay attorney fees, particularly if we can show the other party’s conduct resulted in the necessity of seeking judicial relief and incurring attorney fees.  The issue of attorney fees is commonly reserved by the court until the final order.  Often the issue is ultimately resolved in mediation.

22.           RESTORATION OF SURNAME – Usually the wife has taken on her husband’s last name and as an option, she may return to her prior last name if she so elects.

23.           WAIVER OF INTERLOCUTORY WAITING PERIOD – There is a 90 day waiting period before a divorce may be granted, it may be waived by order of the court.  The waiting period is often waived upon the completion of the required parenting course for divorcing parents.

24.           MEDIATION – Under Utah law, the parties to a divorce action are required to engage in alternative dispute resolution more commonly referred to as mediation.  In any divorce action which includes contested issues, the parties shall participate in good faith in at least one session of mediation. If after one session, the parties do not feel the mediation is assisting them in the resolution of their issues, they may move forward with court litigation.

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Do you have questions about Divorce or Custody issues?

Do you need assistance or advice in a child custody or divorce case?

Call attorney Troy R. Jensen – 801-612-2112 – JENSEN LEGAL

KNOW THE LAW, KNOW YOUR RIGHTS, KNOW I WILL FIGHT FOR YOU!