Utah Family Law A - Z
What is alimony?
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.
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Who can get alimony?
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:
- The recipient's earning capacity. Factors the court considers: past employment history, ability or inability to work, and income received from any source. This also includes the impact of diminished work experience due to being the primary caregiver for children of the marriage.
- The financial condition and needs of the party who would receive the alimony. This includes the recipient's monthly financial obligations and their ability to meet those obligations.
- Whether the recipient contributed to a substantial increase the other spouse's earning capacity by paying for their education or by supporting the other spouse while he/she attended school during the marriage.
- The ability of the paying spouse to provide financial support. All income sources as well as existing monthly financial obligations will be taken into account. As a general rule, debts may not be incurred for the purpose of reducing alimony.
- The length of the marriage. The longer the marriage, the stronger the case for alimony.
- Whether the recipient party has custody of minor children who need support.
- Whether the recipient worked in a business owned or operated by the other spouse.
- The court may also consider the fault of the parties in determining whether to issue an alimony award and the amount of alimony to be paid. A party may be deemed at "Fault" for engaging in any of the following conduct during the marriage that substantially contributed to the breakup of the marriage:
- having an extramarital affair,
- domestic violence, and
- substantially undermining the financial stability of the other party or the minor children.
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.
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Can an alimony be modified?
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 Fair Price Lawyers today to discuss modifying an alimony order.
How is alimony terminated?
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.
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How is an alimony order enforced?
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 Fair Price Lawyers today at (801) 999-0104 to discuss enforcing your alimony order.
Can I enforce an out-of-state alimony order in Utah?
Yes, but before an alimony order from another state can be enforced or modified in Utah, it first must be registered in Utah. Call Fair Price Lawyers today at (801) 999-0104 to discuss registering a foreign alimony order.
How is property divided in a divorce?
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.
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What’s the difference between marital property vs. separate property?
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”.
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How is real property divided in a divorce?
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. Call Fair Price Lawyers today at (801) 999-0104 for a consultation with a Utah family law attorney.
How is personal property divided in a divorce?
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. Call Fair Price Lawyers today at (801) 999-0104 for a consultation with a Utah family law attorney.
What happens to retirement accounts and pension benefits?
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 Fair Price Lawyers today at (801) 999-0104 to speak with a Utah family law attorney.
What effect does a prenuptial agreement have?
The parties may agree on the division of property and assets before entering a marriage by executing a 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 a court’s determination regarding child support, a child's healthcare insurance or expenses, or other childcare expenses. Call Fair Price Lawyers today at (801) 999-0104 to discuss creating a premarital agreement for you.
What are the legal requirements to file for divorce in Utah?
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 have resided in Utah for at least six months, however there are exceptions.
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What are the grounds for divorce in Utah?
Grounds for divorce in Utah include:
- Impotency of the respondent at the time of marriage,
- Adultery committed by the respondent subsequent to marriage,
- Willful desertion of the petitioner by the respondent for more than one year,
- Willful neglect of the respondent to provide for the petitioner the common necessaries of life,
- Habitual drunkenness of the respondent,
- Conviction of the respondent for a felony,
- Cruel treatment of the petitioner by the respondent to the extent of causing bodily injury or great mental distress to the petitioner,
- Irreconcilable differences of the marriage,
- Incurable insanity, or
- When the husband and wife have lived separately under a decree of separate maintenance of any state for three consecutive years without cohabitation.
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What can I do to prepare for filing for divorce?
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.
Consult an Attorney
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.
Gather Financial Documents
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.
Determine Your Goals for Child Custody and Parent-Time
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.
Figure Out Your Post-Filing Living Situation
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.
Talk to an Attorney Regarding Joint Bank Accounts and Credit Cards
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.
Prepare a Balance Sheet of Your Debts and Assets
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.
Gather a Support Network Around Yourself
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.
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How long does the divorce process take?
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.
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How does the divorce process start?
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 serve the petition and a summons on the Respondent no later than 120 days after the petition is filed.
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How do I respond to a divorce or child custody petition?
After being served with a divorce or child custody petition, the Respondent must file an answer to the petition or a motion challenging the petition on procedural grounds. The respondent has 21 days (if they were served in Utah) or 30 days (if they were served outside of Utah) to respond to the petition.
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What if the divorce is not contested?
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.
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What if a party does not respond to a divorce or child custody petition?
If a party does not respond to a divorce or child custody petition within the required time period, usually 21 days, then the petitioner can ask the court to enter a default judgment against the other party. This means that the court will likely grant what the petitioner has asked for in the petition. If you have been served with a divorce or child custody petition, don’t wait, call Fair Price Lawyers today at (801) 999-0104 for a consultation with a Utah family law attorney.
What about the mandatory divorce education classes?
In all Utah divorce cases involving children, the parents must attend a divorce orientation class and a divorce education class before the divorce will be granted. In some circumstances, this requirement can be waived.
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Will I have to participate in a mediation?
Yes. In every Utah family law case, including divorces and child custody disputes, the parties must attend at least one session of mediation to try to resolve the contested issues before the case can move forward to trial.
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Can I request a temporary order?
Yes. Either party in a family law can file what's called a Motion for a Temporary Order asking the court for a temporary order regarding child custody, child support, alimony, possession and control of real estate and personal property, and assets and debts. Once issued, these temporary orders take effect immediately and will be in effect usually until a final order is issued in the case.
Call Fair Price Lawyers today at (801) 999-0104 for a consultation with a Utah family law attorney and to learn more about obtaining a temporary order in your case.
What is child custody?
Child custody refers to the legal rights awarded to a parent regarding the custody, care, financial support, and decision-making authority over their child.
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What’s the difference between physical custody & legal custody?
Legal custody refers to a parent's right to make important decisions about their 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. When both parents share this right and must make these decisions together, they are said to share "joint legal custody. 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.
Physical custody refers to a parent's right to have their child physically with them. When both parents have the right to have more than 110 overnights with their child per year, they are said to share "joint physical custody."
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What is parent time?
Parent time is time allocated by the court for a parent to spend with their child. Historically, parent time has been called "visitation". Essentially, parent time is the specific schedule during which a parent has the right to have their child physically with them.
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What types of custody arrangements do Utah courts order?
Sole Physical & Sole Legal Custody
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.
Sole Physical & Joint Legal Custody
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.
Joint Physical & Joint Legal Custody
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.
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What is split custody?
In a split custody arrangement, each parent is awarded sole physical custody of at least one of the children.
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Do I need to file a parenting plan?
Anytime a parent is requesting, or the parents have agreed to, joint legal or joint physical custody, a parenting plan must be filed.
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What happens if one parent moves far away?
If one parent moves far away, the court may make a change to the child custody and parent time order. A Utah child custody and parent time order can include arrangements for when a parent relocates, such as giving the relocating parent less parent time. 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.
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What is a custody evaluation?
A custody evaluation is an evaluation of the parents and their child conducted by a professional evaluator in a custody case used to determine what custody and parent time arrangement is in the best interests of the child. Qualified custody evaluators must have specialized training and they often hold advanced degrees in psychiatry, psychology or counseling. As part of the evaluation, the evaluator will interview the parents and the child together and separately to learn about their respective parenting abilities and relationship with the child. Parents may request a custody evaluation, and courts sometimes order these evaluations even without a request from either parent. Custody evaluations are expensive. A typical custody evaluation will cost between $5,000 and $10,000. Courts usually order that this cost be split between the parents.
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What special considerations apply to members of the armed forces?
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.
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How to enforce a child custody order?
If the other parent refuses to obey the court’s order regarding child custody or parent time, i.e. visitation, you may file what's called a Motion to Enforce Domestic Order. This motion seeks to have the court enforce the order and to sanction the other party for violating the court's order. Sanctions can include making the other party pay your attorney's fees and costs associated with the Motion.
Call Fair Price Lawyers today at (801) 999-0104 for a consultation with a Utah family law attorney and to learn more about filing a Motion to Enforce a Domestic Order.
Can a child custody order be modified?
If circumstances have materially and substantially 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 child custody order.
Call Fair Price Lawyers today at (801) 999-0104 for a consultation with a Utah family law attorney.
Can I enforce an out-of-state child custody order in Utah?
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 Fair Price Lawyers today at (801) 999-0104 to discuss registering a foreign child support order.
When can child support be ordered?
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.
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How long must child support be paid?
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.
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How is child support calculated?
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:
- Base child support
- Medical care
- Child care expenses
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.
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What about child medical and child care expenses?
If health care coverage is available and within the financial means of the parents, the court will usually order parents to provide health care for their child and to share the cost of the insurance premium and any non-insured medical expenses, including deductibles and co-payments. Parents will also usually be ordered to share equally any work-related child-care expenses such as daycare.
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Who will be able to claim child tax exemptions?
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.
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When can a court deviate from child support guidelines?
Generally, child support is set according to the guidelines described in the Utah Child Support Act. However, these 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.
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How is child support collected?
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).
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How is a child support order enforced?
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 Fair Price Lawyers today at (801) 999-0104 for a consultation with a Utah family law attorney and to learn more about filing a Motion to Enforce a Domestic Order.
Can a child support order be modified?
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.
Call Fair Price Lawyers today at (801) 999-0104 for a consultation with a Utah family law attorney.
Can I enforce an out-of-state child support order in Utah?
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 (801) 999-0104 to discuss registering a foreign child support order.
JOSHUA R. LUCHERINI, ESQ.
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