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Alimony payments, sometimes referred to as spousal support, are court-ordered payments that one party pays to the other party for support while they are separated, in the process of getting divorced, or after a divorce.
Either the wife or the husband may ask the court for an alimony order. Alimony may be awarded temporarily while the divorce case is pending or for a longer period after the divorce has been granted.
The court may consider the following and other factors when deciding whether to issue an alimony order:
Generally, in determining alimony, the court considers the parties' standards of living at the time of their separation. In short marriages with no children, the court may consider the standards of living when the marriage began. Often, the court will try to equalize the parties' standards of living.
Alimony may not be ordered for a period longer than the length of the marriage, unless special circumstances exist.
If there are substantial, material, and unforeseeable changes in the circumstances, either party may petition the court for an order modifying alimony. However, the court may not modify alimony to address needs of the recipient that did not exist at the time the divorce decree was issued by the court, unless special circumstances exist. Call our office today at (435) 777-3304 to discuss modifying an alimony order.
An alimony order automatically terminates upon the remarriage or death of the recipient. The court may also terminate an alimony order if the recipient cohabits with another person after the order for alimony is issued. In such a case, the paying party must file a motion with the court and produce evidence of cohabitation. There is a time limit for filing a motion to terminate alimony for cohabitation. The motion must be filed no later than one year from the day on which the paying party knew or should have known that the former spouse has cohabited with another person. An important point is that the party asking the court to terminate alimony does not need to prove that the former spouse was cohabiting on the date they file their motion to terminate.
If the party ordered to pay alimony fails to do so, the recipient party may file a motion asking the court to enforce the alimony order. The court may issue a money judgment for alimony arrears. The court may also find the party in contempt of court and order the party to pay a fine or serve time in jail, in addition to paying the arrears. Call our office today at (435) 777-3304 to discuss enforcing an alimony order.
Yes, but before an alimony order from another state can be enforced or modified in Utah, it first must be registered in Utah. Call our office today at (435) 777-3304 to discuss registering a foreign alimony order.
Utah law requires that the court make an equitable division of marital property, including real property (real estate), personal property, retirement accounts, and pension benefits. Equitable means fair. However, an equitable division will not necessarily be a 50/50 split of property. Deciding what is a fair distribution of property requires the court to consider several factors, including the length of the marriage, the age, health, and earning capacity of the parties. For long-term marriages, the court may decide that it is fair to give one party more or less than 50% of the property. For short-term marriages, the court may put the people back into the economic position they were in before the marriage. In other words, he gets what was his at the beginning of the marriage, and she gets what was hers. If the parties to a divorce or annulment agree about how to divide their property, the court must still review the agreement to confirm that it is fair.
Marital property is any property acquired during the marriage or paid for during the marriage that is not considered separate property.
Separate (non-marital) property is any property owned by the spouses before the marriage or received as a gift or inheritance during the marriage. Generally, each party gets to keep their separate property, unless that property has been combined with marital property or is used in such a way that it takes on the legal status of marital property. An example of a situation where separate property is combined with marital property, rendering the whole marital property, is when money earned in during the marriage is deposited in a bank account holding money earned before the marriage. This is referred to as “commingling”.
Real property is land and anything permanently attached it, such as a house or other buildings. If real property was purchased during the marriage, it will generally be considered marital property, even if only one spouse's name is on the deed. If the parties cannot agree on who will receive the real property, the court may order that it be sold and the money from the sale divided fairly between the parties. Often, one party will buy out the other by giving them what they would have gotten if the property had been sold. Sometimes, the court may order a party to refinance the mortgage to extinguish the other party’s financial obligation to pay the debt.
Generally, personal property is property that can be moved. This includes things like cars, jewelry, tools, equipment, furniture, and other household goods. If the property has a legal title, such as a car or boat, and it was purchased during the marriage, it will generally be considered marital property, even if only one spouse's name is on the title. Generally, courts favor a division of personal property that helps each party set up a separate home. For example, if two bedroom sets were acquired during the marriage, the court will view it as inequitable to give both bedroom sets to one party.
Retirement accounts and pension plans includes any of the following: defined benefit plans, defined contribution plans, 401(k) plans, state and federal government retirement or pension plans, private employer benefits, and some military retirement benefits. Retirement and pension plans may be regulated by federal and state law and by policies of the plan administrator. As a general rule, anything contributed to a retirement or pension plan by either party from the date of the marriage to the date of the divorce is considered marital property.
Generally, if both spouses have made contributions to their retirement account or accrued pension plan benefits during the marriage, each will be awarded the funds in their retirement account and their plan benefits. If one party made a significantly larger contribution to their retirement account or accrued significantly more pension benefits during the marriage, the court will strive to give the other spouse something of equal value, such as equity from the home, cash, or other property. If there is nothing of equal value to give to the other spouse, then the retirement benefits may have to be split.
Spouses may agree between themselves how much of a retirement account each spouse should receive. If the spouses cannot agree to how much each spouse is entitled to, the Utah judge will apply the formula described in Utah Supreme Court case of Woodward v. Woodward, 656 P.2d 431 (Utah 1982): multiply one-half of the value of the account by the number of years the parties were married and divide by the number of years the employee has worked. For example, if the account has a value of $200,000, and the parties were married for 10 years and the husband worked for 20 years, the wife's share would be $50,000.
Other factors affect this formula, including the date of separation, or whether one of the spouses has done something unreasonable, such as spending, destroying, or giving away marital property. This is called “marital waste.” In situations where marital waste has been committed, a court may reduce the guilty party’s share of the property and assets by the amount that they have wasted.
If a retirement account is to be split or transferred to the other spouse, then a special order, separate from the divorce decree, called a Qualified Domestic Relations Order, or QDRO (pronounced kwădrō) must be signed by the judge. The person who administers the retirement account or pension plan cannot divide an account or pay benefits to a spouse who did not contribute to the plan without a QDRO. Once a QDRO is signed by the judge and approved by the plan administrator, the plan administrator will divide the account or pay the benefits according to the QDRO.
For more information about Qualified Domestic Relations Orders, call our office today at (435) 777-3304 to speak with a Utah family law attorney.
The parties may agree on the division of property and assets before entering a marriage by executing a valid premarital agreement. Under the Uniform Premarital Agreement Act, agreements made in contemplation of marriage become effective upon marriage. A valid premarital agreement can affect real and personal property, including earnings, other income, and retirement benefits. However, a premarital agreement has no effect on the court’s determination regarding child support, a child's healthcare insurance or expenses, or other childcare expenses.
To get divorced in Utah, you or your spouse must reside in a single county in Utah for at least three months immediately before filing the divorce petition. For a Utah court to make decisions about child custody, usually the child must reside with at least one of the parents in Utah for at least six months, however there are exceptions.
Grounds for divorce in Utah include:
There’s more to filing for divorce than simply filing your petition with the court. The following is a list of things you should do before you file to achieve a better outcome in your divorce.
It’s always a good idea to consult an attorney before you decide to file for divorce. An attorney can explain the divorce process, including mediation, financial disclosures, and the legal requirements. An attorney can also help you identify your goals regarding child custody and parent-time and the division of assets and debts.
Documentation is very important in a divorce. You should gather all the records you can regarding your financial and retirement accounts, mortgages and auto loans, credit card statements, tax returns, and pay stubs. Your attorney will need these records to better represent you and often courts require disclosure of these records to your spouse during the case. It’s important to gather these documents before you file for divorce, because they can sometimes be difficult to gather after the divorce is filed.
If you have children, custody and parent-time, during and after the divorce, are probably your biggest concern. You should know that, absent extreme circumstances, the court will likely award you and your spouse joint custody of the children. It’s a good idea to sit down and carefully consider your work schedule, your children’s schedule, and other obligations you may have to outline the custody and parent-time arrangement you want. This will also help your attorney identify your goals during the initial consultation.
You should decide whether you want to live in the same home as your spouse during the divorce process. Do you plan to move somewhere else? Do you want your spouse to move out? Decide what your goals are for your living situation, both before and after the divorce is final. These are important considerations that you should also discuss with your attorney, because moving out of the house can affect your chances of achieving your goals regarding your home and child custody.
Depending on the circumstances and how you and your spouse pay expenses, your attorney may advise you to close these joints accounts to prevent your spouse from running up bills in your name or draining the bank accounts.
You shouldn’t decide your financial goals in a divorce without having an accurate picture of your debts and assets. It’s a good idea to write out a simple balance sheet showing all of your debts and assets, including retirement savings and pensions, bank account balances, valuable personal property and real estate, credit card debts, mortgages, auto loans, and other debts.
This balance sheet can give you an idea of what you and your spouse will divide during the divorce and will help you budget for the future.
Divorce can take an emotional toll on you and your family. Equally as important as hiring an attorney is surrounding yourself with family and friends who can support you emotionally through this difficult time. It may even be a good idea to speak with a therapist to talk through how you’re feeling. Taking these proactive steps can help you keep a clear head during the divorce process and achieve a better outcome.
The length of the divorce process can vary depending on whether the parties agree on matters such as child custody, parent-time, asset and debt division, and alimony. If the parties agree on the terms of the divorce, the process can take a short time. Utah law requires 30 days to elapse between the date the petition is filed and the date the court can enter the divorce decree. However, a party can ask the court to waive the waiting period under extraordinary circumstances. If matters are disputed, the divorce can take much longer, and the case could end up being decided by a judge at trial over a year later. Often parties are able to resolve their disputes at mediation and obtain a final decree of divorce within 4-6 months.
The spouse starting the divorce case is the Petitioner. The other spouse is the Respondent. The Petitioner files the divorce petition in the county in which at least one of the parties has resided for at least three months immediately before filing the divorce petition. The Petitioner must also serve the divorce petition and a summons on the Respondent no later than 120 days after the petition is filed. Petitioner must also file a Proof of Service of the petition with the court.
After being served, the Respondent must file an answer to the petition. The respondent has 21 days (if they were served in Utah) or 30 days (if they were served outside of Utah) to respond to or answer the divorce petition.
After the Respondent files an answer, both parties must submit a financial declaration and initial disclosures to each other. For help completing the financial declaration and initial disclosures, call our office at (435) 777-3304 today.
If the Respondent does not wish to contest the contents of the divorce petition, the Respondent can agree in writing to the petition and the divorce decree. This is called a stipulation. The Petitioner will file the stipulation with the court along with other documents necessary for the divorce decree to be issued by the court.
If your spouse does not file an answer within the time specified in the summons, the Petitioner may ask the court to enter a default judgment against him/her. This means the court will likely grant what Petitioner has asked for in the petition. If you have been served with a divorce petition, don’t wait, call our office at (435) 777-3304 today.
If there are minor children involved, Utah law also requires the parties to attend a divorce orientation class and a divorce education class before the divorce will be granted. In some circumstances, this requirement can be waived.
If the divorce is contested, yes. If there are contested issues in the divorce, the parties must attend at least one mediation session to try to resolve the contested issues before the case can move forward to trial.
Yes. Either party can ask the court for a temporary order regarding child custody, child support, alimony, and assets and debts that will be effective immediately and will be in effect usually until a final decree of divorce is entered. This is accomplished by filing a Motion for a Temporary Order. To learn how to obtain a temporary order, call our office at (435) 777-3304 today.
Custody of a minor child refers to the legal rights awarded by a court to a person regarding the care, financial support, and authority over the child. In Utah, custody may be sought in divorce proceedings or in a separate court case seeking separate maintenance, temporary separation, annulment, parentage, adoption, neglect and dependency, and termination of parental rights. Call our office today at (435) 777-3304 to meet with a Utah child custody attorney to discuss which type of case is best for you. An important point to understand is that custody awards in Utah are not limited to a child’s birth parents. Grandparents can seek child custody in Utah as well.
Physical custody refers to a person’s right to have a child live with them. Legal custody refers to a person’s right to make important decisions about the child, such as what religion (if any) the child will be raised in, whether the child should receive medical treatment or undergo a major medical procedure, where the child will go to school, and whether the child can get married, or join the military before 18 years of age. Under Utah Code Section 30-3-10, joint legal custody is presumed to be in the best interests of the child, unless there is domestic violence in the family, the child has special needs, the parents live far apart, or there is some other factor weighing against a joint custody award the court considers relevant.
When a party is not awarded custody of a child by the court, he or she will often be awarded visitation with the child, also known as “Parent Time.”
Under this arrangement, the child lives primarily with the custodial parent, and the custodial parent makes the important decisions about the child’s life. If sole physical custody is awarded, the non-custodial parent is often awarded parent time with the child.
Under this arrangement, the child lives with one parent for more 225 nights per year, and the other parent has regular parent time, but both parents make important decisions about the child.
Under this arrangement, the child lives with both parents on an alternating basis, with both parents having physical custody of the child at least 111 nights per year. And, both parents share decision making authority regarding the child’s well-being.
Utah courts sometimes order this custody arrangement in situations where there is more than one child. In a split custody arrangement, each parent is awarded the sole physical custody of at least one of the children. Legal custody of the children by the non-custodial parent may or may not be shared, as ordered by the court.
If the parents agree to any form of joint legal custody or joint physical custody, they must file a Parenting Plan. The Utah court will look to the parenting plan in deciding whether the proposed joint custody arrangement is in the child's best interests.
A Utah child custody and parent time order can include arrangements for when a parent relocates. If an order does not include contingencies for when a parent relocates, Utah law dictates a process for either parent to follow to adjust the custody arrangement when a parent plans to move 150 miles or more from the residence of the other parent.
The parties may request a custody evaluation prepared by a professional evaluator. The judge can order a custody evaluation on his/her own without having received a motion from either party requesting an evaluation. A custody evaluation can be expensive, and the cost is often split between the parties. Utah Judicial Rule 4-903 describes specific requirements for court orders requiring a custody evaluation.
Utah’s Uniform Deployed Parents Custody, Parent-time, and Visitation Act protects military service members from discrimination based on their status as active military personnel. Among the provisions of the Act is a provision stating that the residence of the deploying parent is not changed by reason of the deployment. This protects the service member from having their existing custody arrangement changed solely because they have been deployed far away from Utah. The Act also prohibits a court from using a parent’s past deployment or possible future deployment itself as a negative factor in determining the best interests of the child during a custody proceeding.
In the event a party is refusing to obey the court’s order regarding Custody or Parent Time, the aggrieved party must file a Motion to Enforce Domestic Order with the Utah court having jurisdiction over the case. It is important to know that custodial parents may not withhold parent time, even if child support is not being paid. Likewise, a parent may not withhold child support, even if parent time is being withheld. The appropriate remedy is to file a motion with the court. The court may find the offending party in contempt of court and order the party to pay a fine or serve time in jail.
Call our office today at (435) 777-3304 for a free consultation with a Utah family law attorney to learn more about filing a Motion to Enforce a Domestic Order.
If circumstances have materially changed since the last child custody order was entered, e.g. one parent moves further away from the other, either parent can request a change in the custody order.
Yes, but before a child custody order from another state can be enforced or modified in Utah, it first must be registered in Utah. Call our office today at (435) 777-3304 to discuss registering a foreign child support order.
A Utah court can order child support in an action for divorce, separate maintenance, temporary separation, annulment, parentage, or a child welfare case. The Utah Office of Recovery Services (ORS) may also issue administrative orders concerning child support.
Unless a minor is emancipated, child support continues until the child reaches 18 years of age or has completed high school, whichever is later. A Utah court may order child support to continue beyond 18 years of age or high school, if the child is disabled and remains a dependent.
The Utah Child Support Act provides guidelines for Utah courts to follow in calculating child support. Under those guidelines, a child support order should be comprised of three components:
The base child support is calculated using a formula described in Utah Code Section 78B-12-301. The table in Section 78B-12-301 is used by Utah courts to determine the total support obligation for children, which is shared by the parents according to their incomes. Keep in mind that support calculations will differ depending on the custody arrangement, and a Utah court can order additional child support for medical and child care expenses. The Utah Department of Human Services provides a helpful Child Support Calculator.
If health care coverage is available and within the financial means of the parents, the court will usually order parents to share the cost of the minor children's portion of the insurance premium and any non-insured medical expenses, including deductibles and co-payments. Parents will also be required to share work-related child-care—such as daycare—expenses equally.
The child support order will establish which parent can claim the child as a dependent for federal and state income tax purposes. Unless the parties agree who can claim the tax exemption, the Utah court will award the exemption based on which parent makes a greater financial contribution to raising the child and which parent will receive a greater tax benefit from the exemption, among other factors. If one parent stands to receive a tax savings from the exemption and the other parent does not, the Utah court cannot award the exemption to the parent who would not receive a tax savings. The court may also not award the exemption to a non-custodial parent who is behind on child support payments.
Generally, child support is set according to the guidelines discussed above. However, the guidelines are rebuttable. A Utah court can order a different amount if one (or both) of the parties asks for a different amount and provides a good reason for the amount requested. The following Utah child support statutes discuss the guidelines and how they are applied: Utah Code Section 78B-12-202 and 78B-12-210.
The child support order will state how child support payments are to be made. Unless the parties agree to another arrangement, the Utah court may require the non-custodial parent to have their employer withhold child support payments from their paycheck. Child support payments may be made between the parties directly or through the Utah Office of Recovery Services (ORS).
In the event child support payments are not made or parent time is withheld, the aggrieved party must file a Motion to Enforce Domestic Order with the Utah court having jurisdiction over the case. It is important to know that custodial parents may not withhold parent time, even if child support is not being paid. Likewise, a parent may not withhold child support, even if parent time is being withheld. The appropriate remedy is to file a motion with the court. The court may order child support arrears be paid and may also find the offending party in contempt of court and order the party to pay a fine or serve time in jail. Call our office today at (435) 777-3304 for a free consultation with a Utah family law attorney to learn more about filing a Motion to Enforce a Domestic Order.
If there have been significant changes in income or in other circumstances since the support order was entered, either parent can file a motion or a petition, depending on the circumstances, asking the court to increase or decrease the child support obligation.
Yes, but before a child support order from another state can be enforced or modified in Utah, it first must be registered in Utah. Call our office today at (435) 777-3304 to discuss registering a foreign child support order.
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