The purpose of this Summary of Utah Divorce Law is to give accurate and authoritative information as of the time of its publication regarding certain specific questions concerning the subject matter covered. This information is not in any way intended to substitute for an attorney or to give legal advice and counsel. Any person contemplating legal action or involved in a legal controversy should seek the full aid and professional guidance of an attorney for their own individual case and for their own protection.
WHAT ARE THE GROUNDS FOR DIVORCE IN UTAH?
Utah formerly followed the “fault” concept in divorce proceedings; this meant that to establish grounds for a divorce, one spouse blamed the other or found fault with the other spouse. In 1987 Utah passed a law that allows divorce when there are “irreconcilable differences” such as when the parties can no longer “pursue the legitimate purposes of the marriage.” Under this law one party doesn’t have to blame the other but may simply tell the court that the marriage is “no longer working.” This is what is called a “no fault” divorce provision.
The law previously held that the offending spouse who caused the divorce, lost rights and property in a divorce proceeding, but as a practical matter and by statute this is no longer the case. The person that begins the divorce action is called the “Petitioner”; the person against whom the divorce is filed is called the “Respondent.”
THE FOLLOWING ARE THE STATUTORY GROUNDS FOR DIVORCE IN UTAH:
- IRRECONCILABLE DIFFERENCES of the parties.
- IMPOTENCY at the time of marriage.
- ADULTERY committed subsequent to marriage.
- Willful DESERTION of the other spouse for more than one year.
- Willful NEGLECT TO PROVIDE the common necessities of life.
- Habitual DRUNKENNESS .
- Conviction of a FELONY .
- Cruel treatment to the extent of causing bodily injury or great mental distress — MENTAL or PHYSICAL CRUELTY .
- The spouses have lived separate and apart under a decree of separate maintenance for a period of three consecutive years — THREE YEARS UNDER SEPARATE MAINTENANCE DECREE .
- Permanent and incurable INSANITY (must be established by competent medical testimony).
The most common ground for divorce in Utah is irreconcilable differences.
WHAT ARE THE GROUNDS FOR A DECREE OF SEPARATE MAINTENANCE IN UTAH?
A decree of separate maintenance may be granted on the following grounds:
1. A spouse has deserted or left the other spouse without good and sufficient cause;
2. A spouse has, although able, neglected or refused to properly provide for and suitably maintain the other spouse; or,
3. A spouse without fault lives separate and apart from the other spouse.
WHAT IS THE DIFFERENCE BETWEEN A DECREE OF SEPARATE MAINTENANCE AND A DIVORCE DECREE IN UTAH?
Parties are “legally separated” only when a court has entered a decree of separate maintenance. To obtain a decree of separate maintenance in Utah, the parties must go through a proceeding similar to a divorce. A decree of separate maintenance divides property, awards custody of children, provides for child support and alimony, etc., but does so on a temporary basis; the decree of separate maintenance does not end the marriage. Alimony under a decree of separate maintenance is more common than under a divorce decree because the parties are “still married,” and the law requires spouses to support one another.
Attorney’s fees and court costs for a separate maintenance action are the same as for a divorce action. If, after a decree of separate maintenance is entered, the parties decide that they want a divorce, all of the costs and fees will be incurred a second time for the divorce.
WHAT ARE THE GROUNDS FOR AN ANNULMENT IN UTAH?
An annulment is a court decision that a marriage was not valid at the time it took place. This differs from a divorce, which is a termination of a valid marriage.
The three main grounds for annulments are: (1) lack of capacity, (2) fraud and (3) lack of disclosure.
“Lack of capacity” means that for some reason the person was legally incapable of marrying — for example, the person was under-age, or not finally divorced from a previous spouse, or mentally defective or too drunk to know what he or she was doing.
“Fraud” may be grounds for an annulment where a substantial and material untruth actually influenced the decision to marry; such as, a woman tells a prospective spouse that she is pregnant with his child and this is untrue, or a man falsely tells his prospective spouse that he is the president of General Motors.
“Lack of disclosure” may be grounds for an annulment where a substantial and material fact is not disclosed prior to the marriage; such as, if a spouse fails to reveal several previous marriages, or a serious criminal history. If a party can establish to the court’s satisfaction that he or she would not have entered into the marriage if this important fact had been disclosed, an annulment may be granted.
An annulment may also be granted in Utah when the marriage is incestuous. Marriages are usually considered to be incestuous when the parties are blood relatives or are cousins or closer by marriage. An annulment may also be granted if the marriage ceremony was not performed by a legally authorized person, however, a Utah statute enacted in 1987 recognizes “common law” marriage, holding that there may be a valid marriage under certain limited circumstances without a formal ceremony.
In Utah, a person under the age of 15 years cannot legally marry. A person between the age of 16 and 18 must obtain written parental permission to marry. A person age 15 years must not only have parental permission but must also have a judge approve the marriage based upon a court determination that the young person is voluntarily entering into the marriage.
After age 18, men or women in Utah can marry without parental permission.
WHAT ARE THE TIME PERIODS AND RESIDENCE REQUIREMENTS FOR A DIVORCE IN UTAH?
A divorce action must be brought in the county within Utah where either spouse has been a resident for at least three (3) months immediately before the filing of the action with the court.
By law, no final court action on the divorce can occur until at least ninety (90) days have passed from the date of the filing of the action. The court has the power to shorten this period, but is reluctant to do so unless there is a very good reason; simply wanting to end the marriage as quickly as possible is not sufficient. By Utah statute the waiting period is waived if the parties have minor children and both parties attend the required “Divorce Parenting Education Class.” This class is discussed in more detail below.
Utah divorce laws require the initial ninety (90) day waiting period as a “cooling-off period” in the hope that the parties can reconcile.
A divorce decree usually becomes final on the date it is signed by the Judge, unless the Judge determines there is some good reason to make the parties wait for a period of time before it becomes final. The decree is usually signed by the judge within a few days after the final papers are presented to the judge.
The divorce is final upon signing of the decree by the Judge and filing by the clerk without any further action by the parties or by the court.
There are no durational residency requirements prior to filing for annulments or for separate maintenance. In addition, there are no waiting periods in those types of cases. Thus a party could move to Utah, institute an action for an annulment or separate maintenance the same day, and if all parties agreed and there were no complications, the action could be final within a few weeks.
WHAT IS THE NORMAL PROCEDURE FOR SECURING AN UNCONTESTED DIVORCE?
A divorce COMPLAINT is filed with the court clerk; it sets out the grounds and terms of the divorce as requested by the petitioner, the person initiating the divorce. Upon filing the divorce complaint a case number and in most cases a judge is assigned to the case.
A MILITARY SERVICE AFFIDAVIT is filed witht the court clerk. Military service members have rights under the Servicemembers Relief Act that protect them in lawsuits. A Military Service Affidavit is required to inform the Court that your spouse is not in the military and the divorce may proceed against him or her.
An ACCEPTANCE & WAIVER is signed by the other spouse, the respondent, if he/she agrees to the terms of the divorce set out in the complaint. The Acceptance & Waiver is filed with the court clerk.
An AFFIDAVIT IN SUPPORT OF DECREE OF DIVORCE is filed with the court clerk; this sets out, under oath signed by the petitioner, the grounds for the divorce. In most cases this document takes the place of any court appearance and the divorce can be finalized without attending a hearing or appearing in front of the judge.
A MOTION TO ENTER DEFAULT DIVORCE is filed with the court clerk; this requests that the Court enter the divorce and establishes that the other party is not contesting the divorce.
A completed NOTICE TO SUBMIT/CHECK LIST is filed with the court clerk which shows that all of the necessary documents have been completed and/or filed with the court and that the court should be ready to sign the final paper work for the divorce.
If all documents are in order and the correct procedures have been followed, the divorce will be granted, in most cases, based upon the written documents without the need for the petitioner to personally appear before the judge. A personal meeting or what is called a default hearing can still be required to finalize the divorce if the Judge desires.
FINDINGS OF FACT & CONCLUSIONS OF LAW are filed with the court, which set out the facts regarding the parties’ marriage, etc. upon which the Court will base the granting of the divorce. The contents of the Findings of Fact match the contents of the complaint. The Conclusions of Law set out the proposed legal result based upon the facts that have been established for the court. If all of the procedures have been followed, the grounds established and the paper work is in proper form, the judge signs the Findings of Fact and Conclusions of Law.
A DECREE OF DIVORCE is the court order that actually terminates the marriage. It sets out the terms of the divorce as requested in the complaint. If everything is in order, the judge signs the Decree of Divorce. A divorce is usually final when the judge signs the Decree of Divorce.
A NOTICE OF ENTRY DECREE is completed, signed and filed by the petitioner after the Findings of Fact & Conclusions of Law and the Decree of Divorce have been signed and a copy mailed to the respondent. This gives notice to the other spouse that the divorce is final.
If there are children from the marriage, additional paper work must be filed.
A CHILD SUPPORT WORKSHEET, REQUIRED LOCATION INFORMATION, and a STATEMENT OF COMPLIANCE are filed along with the Acceptance and Waiver. These set out calculations with regard to child support along with written proof for the court as to the parties’ location information and incomes.
CERTIFICATES OF ATTENDANCE showing that both parties have attended the required “Orientation” and “Divorce Education Class for Divorced Parents” must be filed with the court. The instructor will file the parties’ certificate directly with the court if the parties provide the divorce case number at the time of the class.
CAN ONE SPOUSE PREVENT THE OTHER FROM GETTING A DIVORCE?
As a practical matter, a spouse cannot prevent the other from getting a divorce. If a divorce is contested, the disagreements usually revolve around support, custody, debts and property division. Rarely is there a real fight as to whether there should be a divorce. By contesting the divorce, the other spouse can not prevent the divorce but simply prolong the process. In Utah, a contested divorce may take many months longer from start to finish than the normal three (3) months of an uncontested divorce.
WHAT ARE THE COSTS OF A DIVORCE IN UTAH?
The average attorney fee for an uncomplicated, uncontested divorce in Utah is between $250 and $1,000. In addition, there are court costs: filing fees (currently $318) and if necessary, Sheriff’s fees to serve the papers.
If a divorce is contested and/or goes through a full trial, the attorney’s fees will increase substantially and will be charged on an hourly basis. Fees of many thousands of dollars would not be unusual in a hotly contested divorce. There will probably be other expenses in a contested divorce such as expert witnesses fees for appraisers or custody evaluations. If the divorce is contested, both sides will incur similar attorney fees. Utah law provides that a spouse that cannot afford an attorney in a divorce action may ask the court to order the other spouse to pay their attorney fees and court costs. However, a spouse should not plan on having their attorneys fees paid by the other spouse.
Certain agencies in Utah may provide legal services in divorces to people who cannot afford to pay for them. Availability is based upon poverty guidelines. For information about possible assistance in Salt Lake County contact Salt Lake Legal Aid Society; in other counties contact Utah Legal Services.
IS THERE ANY REQUIREMENT THAT I ATTEND COUNSELING BEFORE I FILE FOR A DIVORCE?
Utah law provides that the court may require counseling before granting a divorce. The purpose of the counseling is two-fold: to see if the marriage could be held together, and if not, then to better prepare the parties for their new roles as unmarrieds. Many years ago, Salt Lake County had a counseling requirement before a divorce could be heard by the court; but, there is no longer a counseling requirement in Salt Lake County.
A divorce action is an emotionally taxing experience for most people, especially when children are involved. The attorney and the court can handle only the “legal aspects” of dissolving the marriage contract; the parties must cope with the emotional and psychological aspects of the break-up of the relationship. A lawyer can provide only “legal help.” A person may want to seek counseling to help cope with the personal non-legal aspects of divorce.
A person must determine who can best aid them with the various problems involved in a divorce. When legal counsel is billing a client on an hourly rate, a wise person uses that attorney for legal matters and relies on friends, family or professional counselors for the non-legal, emotional and supportive needs caused by the divorce.
WHAT IS THE “DIVORCE PARENTING CLASS”?
The Utah Legislature determined that in divorces when minor children are involved, the best interests of the children would be served by providing education for the parents as to how children are affected by a divorce. A Utah law, effective in 1994, requires that both parents in divorces involving minor children must attend a two (2) hour “Divorce Parenting Education Class.” In 2008, an additional one(1) hour Divorce Orientation was added to this requirement.
The Divorce Parenting Education Class and Divorce Orientation are required in every divorce in Utah involving minor children. Both parents must attend. The parents do not have to attend the class together. There is a fee for the classes (currently fifty-five dollars ($55.00) for each person). The class is offered several times per month in various locations throughout the state. If a person cannot personally attend the class (i.e., incarcerated or out of state) they may watch a video tape of the presentation.
The one (1) hour Divorce Orientation course educates the parties of a divorce action about divorce and its alternatives. It informs the parties about:
- Resources to improve or strengthen the marriage.
- Resources to resolve custody and support issues without filing for divorce.
- The positive and negative consequences of divorce.
- Procedural options in a divorce, including mediation, collaborative law, and litigation.
- The divorce process.
- Post-divorce resources.
The two (2) hour Divorce Education Class provides assistance to parents in understanding the needs of children during the difficult divorce process and helps parents to understand and support their child’s emotional well-being. Most parents that have attended the class found it worthwhile and helpful; it has aided them in dealing with their children’s concerns as well as custody and visitation during and after the divorce.
Several newspaper articles discuss the divorce education class, its contents and the positive reaction from most people that have attended the class. Those articles can be found at:
- Class Aims to Help Parents Ease Pain of Divorce for Kids – Friday, November 20, 1992
- 80% Want Divorcing Parents to Attend Classes For Kids’ Sake – Sunday, January 31, 1993
- Divorcing Parents Should Put Kids First – Sunday, October 9, 1994
- ‘Divorce School’ Helps Parents Cope – Saturday, April 15, 1995
More information about the required Divorce Orientation and Divorce Education Class can be found on the Utah State Courts website, or click here.
WHEN AND WHERE ARE THE “DIVORCE ORIENTATION” AND “DIVORCE PARENTING CLASS” HELD?
The (2) required courses are held in various locations throughout the state at different times to accommodate most people’s schedules. The court clerks in each county have copies of the monthly calendar.
Monthly calenders showing when and where the courses are offered throughout the state are also available on the Utah State Court web site. To access those calendars CLICK HERE.
WHAT IF THE OTHER SPOUSE DOES NOT LIVE IN UTAH, CAN I STILL GET A DIVORCE HERE?
The key to where a divorce can be granted is jurisdiction. Jurisdiction simply means that the court has power over the other spouse. Utah law provides that under most circumstances if there is substantial connection between the parties, the marriage, and the State of Utah, and the other spouse has notice of the proceedings, then a Utah court can grant a divorce.
If one spouse is a resident of Utah, and the other spouse has never lived in Utah, the Utah court can grant a divorce and award custody of children and property in Utah, but absent agreement from the out-of-state spouse, the Utah court usually cannot order the out-of- state spouse to pay child support, alimony or attorney fees or divide property not in Utah.
If one spouse is a resident of Utah, and the parties have lived together in Utah, or the acts which are the grounds for the divorce occurred in Utah, then a Utah court can usually grant a divorce and make determinations regarding property division, child support, custody, alimony, etc.
Contested divorces involving minor children not living in Utah may become complicated by jurisdictional questions. The law includes detailed specific standards for jurisdiction as to custody of minor children.
WHAT IF THE OTHER SPOUSE WON’T ACCEPT THE DIVORCE PAPERS?
In an uncontested divorce both parties usually sign the necessary paperwork and it is then filed with the court. This is an easy and cost effective way for the parties to obtain a divorce.
If a spouse/respondent refuses to sign the paperwork the usual procedure is to have the respondent served. This process requires that a Sheriff or Constable serve (hand deliver) a copy of the divorce papers to the respondent. The papers include the “Divorce Complaint” which sets out the terms of the divorce as sought, and a “Summons” which tells the other side that he or she is being sued and must respond in writing to the court within a specific amount of time if the respondent does not agree to the terms of the divorce complaint. The respondent does not have to sign anything and there is no way that the respondent can refuse to receive the papers from the Sheriff or Constable. After the allotted time if the respondent has not filed an answer, the petitioner can proceed with the divorce and the respondent’s default will be entered. If the respondent avoids service or the constable is unable to locate the respondent after many attempts an alternative form of service may be necessary. Alternate service is discussed below.
However, if the respondent files an “Answer” with the court the divorce has become contested.
WHAT HAPPENS IF THE OTHER SIDE DOES NOT RESPOND TO THE DIVORCE PAPERS?
After service of a summons by the Sheriff, if the respondent spouse does not file any papers to contest or to answer the divorce action, within the required time (usually twenty (20) days), then the divorce will be granted exactly as asked for in the complaint. The Judge will usually not question what is asked for in the divorce complaint, unless there is some response from the respondent.
If the respondent spouse thinks that there are errors or unfair requests in the divorce complaint, then that spouse should answer or challenge those items. That challenge is made in a formal legal pleading or document called an “answer.”
After a divorce has been granted by the court, it is difficult to change terms of the divorce decree. If the respondent spouse ever wants to contest any part of the divorce, it is best done when the divorce action first starts. To change something at a later time, the respondent spouse must show a substantial change in circumstances after the divorce was granted.
Even though it may be difficult to pay for or get legal counsel to contest an unfair divorce complaint, it will pay off in the long run. An attorney can best protect your interests when the divorce action is still pending, rather than after the divorce has been granted by the court.
CAN I GET A DIVORCE EVEN IF I DON’T KNOW WHERE MY SPOUSE IS?
A person can get a divorce even though their spouse cannot be found. If, after a diligent search by the person seeking the divorce, the spouse cannot be found and personally served with papers, the court will allow a divorce to proceed by granting permission to give notice of the divorce by publication in a legal newspaper and/or by mailing the papers to the spouse’s last known address or by mailing the papers to the address of a relative. A divorce granted in this manner is restricted to granting a divorce and custody of children in Utah and dividing property in Utah; the court cannot make any orders regarding other property division, support, alimony, debt division, etc. in such a divorce.
CAN A PERSON OBTAIN A DIVORCE OR DEFEND A DIVORCE ACTION WITHOUT THE AID OF AN ATTORNEY?
Under the law a person can act as his or her own lawyer and represent him or her self in court. Legal proceedings are fairly complicated and detailed, and a lay person will probably have a difficult time working through the technical procedures of the courts if a case is contested. Most lay persons do not know or understand the law or all of the consequences of a legal proceeding.
To protect oneself, a person should be represented by an attorney or thoroughly discuss the matter with an attorney before proceeding on one’s own. However, Do-It-Yourself divorces are legal and available in Utah and can be used inexpensively in simple uncontested divorces. Do-It-Yourself Divorce assistance is offered by Utah Legal Clinic.
DO BOTH PARTIES NEED THEIR OWN LEGAL COUNSEL IN A DIVORCE?
A lawyer cannot meet with or represent two parties who may have conflicting interests. A lawyer can represent only one party to a divorce; the other party, if there are any questions, should consult another lawyer even if only to be sure that the divorce papers say what they appear to say and there are no vague areas or unclear areas.
WHAT ARE TEMPORARY RESTRAINING ORDERS, TEMPORARY ORDERS AND INJUNCTIONS?
A temporary restraining order is a type of injunction or a court order telling a person to do something or not to do something — such as move out of the family house, stop physical violence against the other spouse, etc.
A temporary restraining order may be obtained as a part of a divorce action. A court grants a temporary restraining order without letting the other spouse know of the order until the order is served by the Sheriff. A court will grant a temporary restraining order only when immediate and irreparable harm will be suffered unless the temporary restraining order is issued and served. A temporary restraining order stays in effect for ten (10) days only, and within those ten (10) days the court must have a hearing to decide whether the temporary restraining order shall continue in effect. This hearing is usually called an Order to Show Cause hearing, which requires the spouse to show cause why the temporary restraining order should not continue if effect. At the hearing, the other spouse will have a chance to explain his/her side of the story. The court is reluctant to take long term action against anyone, without letting them have a chance to tell their version of the problem. If the temporary restraining order is continued in effect it is called a preliminary injunction.
Since divorce actions take three (3+) months or more, it is often important and necessary that the parties have a temporary order setting out each party’s rights and responsibilities while the action is pending. Thus, the court will make orders regarding temporary child support and custody, temporary alimony, temporary possession of the family home, furniture, cars, temporary payment of the family bills, etc. This way the parties know exactly where they stand while the divorce is pending. The hearing that the court holds before making these temporary orders is usually called a hearing on an Order to Show Cause; the defending spouse is required to appear and to show cause why the requested temporary order should not be entered by the court.
If a party fails to comply with a temporary restraining order, or other temporary or permanent order of the court issued as part of the divorce action, the other party must institute further legal proceed-ings to enforce the order. This means that another hearing will be scheduled and the offending party may be cited for contempt of the court for failing to follow the Court’s order. The time involved in setting up another hearing to enforce the order will be normally at least a couple of weeks from when the alleged violation of the order. Neither the police nor the sheriff will enforce a temporary restraining order or other order issued as part of the divorce action, ONLY the court can enforce it, and then only after a hearing. Thus, a temporary restraining order or other court order, can be effective in the long term but will often not be effective in the immediate short term. For quicker help in cases of violence, see discussion of “Cohabitant Abuse Act” below.
A permanent injunction is a final order included in the divorce decree permanently ordering one or both of the parties to do something or not to do something. An example is a case where there has been harassment of one of the parties at work or at home. As a part of the final divorce decree, the court may order or “enjoin and restrain” the other from harassing the former spouse at home or at work. If this order is violated, the offending spouse may be found in contempt of court and punished, but a full hearing like those discussed above must be held.
WHAT IS THE COHABITANT ABUSE ACT?
Under the Cohabitant Abuse Act, a temporary restraining order called a “Protective Order” may be obtained in a proceeding separate from a divorce action. Such an Order may be issued when a person has been subjected to physical harm or fear of physical harm by a person with whom they live or with whom they formerly lived, and when there is a substantial likelihood or immediate danger that such harm will occur. A Temporary Ex Parte Protective Order, which is good for twenty (20) days, may be issued without prior notice to the offending party. Such an Order may require the respondent to immediately leave the residence or to stop the abuse. Violation of such an Order is a criminal offense and law enforcement officers may enforce the Protective Order without further court proceedings by various means, including arrest. After notice to the offending party and a hearing, a Protective Order to remain in effect for an extended period may be issued. This Order may include provisions for child custody and support.
A proceeding under the Cohabitant Abuse Act may be brought with or without an attorney. Limited free advice and assistance and all the necessary forms to obtain a Protective Order are available from the District Court Clerk in every county. The procedure is simple and quick so people can get protection without an attorney.
WHAT KINDS OF CHILD CUSTODY ARE THERE AND HOW WILL CUSTODY BE DECIDED?
There are several different types of custody.
“Sole” custody means one parent has physical custody of the children (the children live with them) and that parent makes the major decisions regarding the children’s lives.
“Split” custody means that each parent has physical custody of at least one of the children. (This is not common.)
“Joint Custody.” There are two (2) different types of “Joint” custody:
- Joint “legal” custody involves decision making between the parties with regard to the major decision affecting the children’s lives. It is important for the parties to define what “joint legal custody” means to them in the divorce papers to avoid future conflict. Joint legal custody may be defined as the custodial parent consulting the other parent regarding the major decisions effecting the children. Joint legal custody may be defined as the parties making joint decisions with regard to the minor children. Equal access to medical, school and other records may also be mentioned.
- Joint “physical” custody means that the children physically live with both parents. In order for a parent to have joint physical custody, the children must spend more than 30% of overnights with that parent. Joint physical custody would normally require that the parents live in the same general area.
Any election of joint custody works best when the parents are able to communicate with each other and are willing to work together to address the needs of the children.
When joint physical or legal custody is sought or awarded the parties are required to present to the court a detailed “Parenting Plan” setting out specifics with regard to the care of the children, their residence, visitation, resolution of disputes, etc.
A Parenting Plan must have a mediation or resolution clause in it. Such a clause provides that if the parties are unable to make a decision with regard to the children that they shall seek the assistance of a professional mediator to help them resolve the problem before filing an action with the court.
WHAT DOES THE JUDGE LOOK FOR IN THE AWARDING OF CHILD CUSTODY?
There are no set specific objective rules but only general guidelines. The Judge has the power to award custody and to provide for “the future care and custody of the minor children as it considers appropriate.”
Custody is determined by the court as to the best interests of the child. Factors might include the past conduct and demonstrated moral standards of each of the parties; which parent is most likely to act in the best interest of the child, including allowing contact with the non-custodial parent.
In rare circumstances, the court may inquire of the children his or her desires regarding custody or parent-time. However, the expressed desires are not controlling and the court may determine the custody or parent-time otherwise. The desires of a child 16 years of age or older shall be given added weight, but is not the single controlling factor. Utah Code Ann. §30-3-10 (1953 as amended).
MAY I RELOCATE?
If either parent decides to move from Utah or 150 miles or more from their residence, that parent must provide reasonable advance written notice to the other parent. However, the parent with custody is usually not prohibited from leaving the state with the children. Upon request, the court may schedule a hearing to review the visitation and make changes regarding the visitation. The court will generally consider: 1) the reason for the relocation; 2) any additional costs or difficulty in exercising visitation; 3) the economic resources of the parents; and 4) any other relevant factors. The court may order the moving parent to pay the costs of transportation for at least one visit per year with the other parent, and any additional visits as determined to be fair.
Unless otherwise ordered by the court, the following is the minimum visitation schedule upon the out-of-state relocation of one party:
- In years ending in an odd number, the child shall spend the Thanksgiving holiday, and Fall school break with the non-custodial parent.
- In years ending in an even number, the child shall spend the entire winter school break period, and Spring break with the non- custodial parent.
- In addition, the non-custodial parent is entitled to extended visitation during the summer vacation or off-track time.
WHAT ARE REASONABLE VISITATION RIGHTS?
Normally in a divorce action one spouse is awarded the custody of the children subject to the “reasonable visitation rights” of the other spouse. Utah statutes now refer to visitation as “parent-time.” “Reasonable” visitation rights means whatever the parties can agree upon.
If the parties cannot agree upon visiting schedules or arrangements, then they can go back into court and have the judge spell out exact times, places and procedures for visitation. Utah law establishes a schedule for minimum reasonable visitation if the parties cannot agree. There are two (2) visitation schedules: one for children under age five (5) and another for school-age children, ages 5-18.
Click here to see the Minimum Schedule for Parent-Time for Children Under Age Five (5).
Click here to see the Minimum Schedule for Parent-Time for Children Over Age Five (5).
The court would rather that the parties be flexible and work out their own visitation schedules allowing the other spouse to visit as much as possible without disrupting the routine of the family. The judge will, however, reluctantly establish exact visiting schedules and will follow the statutory minimum if necessary.
The legislature has enacted advisory general guidelines regarding visitation. Click here to see the legislative statutory guidelines. Compliance with these guidelines will normally be ordered by the court. These guidelines are an attempt to eliminate conflicts and questions between parents when arranging for and implementing visitation. Reference to these guidelines in a divorce decree make them part of the court’s custody and visitation order.
Custodial parents may not withhold rights of visitation if child support is not being paid. Likewise, child support is not to be withheld if visitation is being denied.
Under some circumstances, the court may grant reasonable rights of visitation to the grandparents of the parties’ children, if it is in the best interest of the grandchildren.
HOW IS A CHILD SUPPORT AMOUNT DETERMINED?
When a divorce is granted to parents of children, the court will apportion to each parent a “reasonable and proper share” of the children’s expenses. The court will consider all relevant factors, including but not limited to:
a) the standard of living and situation of the parties;
b) the relative wealth and income of the parties;
c) the earning ability of both parents;
d) the needs of parent receiving the support;
e) the age of the parties; and,
f) the support or alimony obligations from prior marriages or relationships.
The court applies statutory guidelines to set support based on these factors. The parties calculate and determine that amount of support that is required based upon the guidelines; the Court simply verifies that the amount is properly calculated.
To calculate awards of child support, the Utah Legislature established state-wide guidelines which were updated most recently effective Jan 1, 2008. These are to be followed in all divorce actions by all judges in Utah. The guidelines are very specific and take into account both parent’s income(s), the number of children, support or alimony obligations from prior marriages, etc.
The guidelines use the gross (before taxes) monthly income of both parties. Gross income is defined as income from any source including salaries, bonuses, commissions, etc. For child support purposes the income used in calculating support is limited to one full time job (consistent overtime should also be included in the gross income figures). The procedures establish a percentage relationship comparing the parents’ incomes which determines the amount of child support.
Child support is separate from and in addition to one-half of day care, one-half of non-covered medical expenses and one-half (1/2) of children’s portion of health insurance premiums which each of the parties must also pay.
These statutory support guidelines are to be followed by the Court absent extraordinary circumstances. The Court will presume the amounts under these guidelines are fair and reasonable and shall follow them unless one of the parties can convince the Court otherwise. Only rarely are the guidelines not followed by the Court.
HOW DO I CALCULATE CHILD SUPPORT ON MY OWN?
As described above, child support is calculated using a formula and guidelines established by the Utah legislature.
Calculation as to the amount a person will owe in the many possible different situations can be complex and cannot be set out in this summary. The specific instructions, formula, guidelines and charts for calculating child support are available from the district court clerk in each county.
The Utah Office of Recovery Services (ORS) provides an online child support calculator by which an estimate of child support amounts can be made. Click here to use the ORS child support calculator for an estimated child support amount.
HOW LONG MUST CHILD SUPPORT BE PAID?
In Utah, women and men are no longer minors after age eighteen (18).
Under Utah law, child support must be paid for children until they reach eighteen (18) or graduate from high school during the child’s normal and expected year of graduation, whichever occurs later. Child support also terminates when children marry or are legally emancipated.
If there is good reason, the decree may order the payment of the child support for a time period beyond that required by law. Thus, the decree could require child support to age twenty-one (21), or only to eighteen (18) unless the child is a full-time student and then until age twenty-one (21), etc. Such extensions are rarely granted by the court unless both parties agree. If a child has a permanent disability and is unable to support her/himself, child support may be required past the age of twenty-one (21).
CAN CHILD SUPPORT BE WITHHELD FROM A PERSON’S PAYCHECK WITHOUT HIS OR HER CONSENT?
Yes, up to one-half (½) of disposable income may be withheld from the paycheck of a person who is obligated to pay child support. An Order requiring an employer to withhold the support may be entered by the court as part of a divorce action. The Order is enforced by the Office of Recovery Services (O.R.S.) of the Utah State Department of Human Services. Under some circumstances, O.R.S. may enforce child support through income withholding even if there is no order of with-holding in the divorce decree.
The custodial parent has the option of using “full range child support services” through O.R.S. This means that O.R.S. may, among other things, arrange for child support to be taken directly out of the obligated spouse’s paychecks, take federal and state income tax refunds from a delinquent obligated parent and take other coercive actions to force payment of child support and periodically review the amount of child support owed. Or, the custodial parent can use the “child support only” service from O.R.S. This means the O.R.S. will simply collect child support by arranging for withholding from the obligated spouse’s paychecks.
You can get more information about O.R.S. and services available through their website. You can also request assistance from O.R.S. by clicking here and following the instructions provided or calling O.R.S. directly at (801) 536-8500.
WHAT HAPPENS TO CHILD SUPPORT IF THE CHILD MOVES IN WITH THE NON-CUSTODIAL PARENT?
The child support and the obligation to pay medical expenses for the minor children “follow” the children. When calculated, child support is based upon a percentage of each party’s gross income. For example, the custodial mother earns 44% of the combined marital income and her portion of the child support would be $297.00 and the non-custodial father earns 56% of the combined martial income and his portion of the child support would be $377.00. The child support worksheet indicates each party’s obligation based upon the percentages.
If in the future, the children went to live with the father on a permanent basis, the mother would owe the father her percentage of child support as set out in the child support worksheet, in our example that would be $297.00.
Provided both party’s child support obligation is set out in the divorce decree, it is not necessary to have the decree modified if the children go to live with the other parent. This automatic change in support is not used if there was or will be joint physical or split custody of the children.
WHAT HAPPENS TO CHILD SUPPORT IF THE CHILD ONLY TEMPORARILY MOVES IN WITH THE NON-CUSTODIAL PARENT?
Utah law does provide for a temporary abatement of child support if the child temporarily resides with or visits the non-custodial parent for a period of time.
As per Utah law, if the child resides with or visits the non-custodial parent for at least 12 (but less than 25) of any 30 consecutive days and over-nights, the amount of child support due and payable to the custodial parent for that period for that child would be reduced by twenty-five (25%) percent.
Likewise, if the child resides with or visits the non-custodial parent for at least 25 of 30 consecutive days and overnights, the amount of child support due and payable to the custodial parent for that period for that child would be reduced by fifty (50%) percent.
Normal visitation and holiday visits with the custodial parent are not considered an interruption of the consecutive day requirement.
In either case above, the per child amount of abatement shall be calculated by dividing the current base child support award by the number of children included in the award. If child support is withheld using the Utah State Office of Recovery Services and/or another state agency administering Universal Withholding, notice should be given of the extended visitation and the reduction of child support for that period of extended visitation.
WHO PAYS MEDICAL EXPENSES AND HEALTH INSURANCE FOR THE CHILDREN?
The divorce decree will assign responsibility for medical, health, optical and dental insurance coverage and such expenses of the children. The court will order that a parent (or both) maintain hospital, dental, etc. insurance for the children as available at reasonable cost through an employer.
The court will order that each parent pay one-half (½) of the cost of the children’s insurance coverage. The cost for the children’s insurance is calculated by dividing the premium amount actually paid by the number of persons covered under the policy and multiplying the result by the number of the parties’ children covered.
For example, if a party is paying $75.00 per month for health insurance for that party and two (2) minor children, the children’s portion of the health insurance premium is $50.00 ($75.00 divided by 3= $25.00 each person. $50.00 would be the children’s portion). Each party shall be ordered to pay one-half (½) of the premium actually paid by a parent for the children’s portion of insurance (in the example, each parent would pay $25.00).
The court will also order each party to pay one-half (½) of the necessary and reasonable medical, dental, optical, etc. expenses incurred for the children and not covered by insurance.
WHO PAYS DAYCARE EXPENSES?
The court will order each party to pay one-half (½) of all reasonable work, career, or occupational training-related child care expenses necessary so that the parties can work full-time, up to forty (40) hours per week.
AFTER THE DIVORCE, WHICH SPOUSE CLAIMS THE CHILDREN AS DEPENDENTS FOR INCOME TAX PURPOSES?
The general Internal Revenue Service regulation is that the parent who has custody of a child for more than half (½) the calendar year is presumed to have paid more than half (½) the child’s total support for the year and is allowed to claim the child as a dependent for state and federal income tax purposes.
There are two exceptions:
- A divorced non-custodial parent may claim a child as a dependent for federal income tax purposes only if the custodial parent signs a written declaration that he or she will not claim the child and the non-custodial parent attaches this written declaration to his or her tax return; or,
- A divorce decree entered prior to 1985 gives the dependency exemption to the non-custodial parent and he or she provided at least $600 for the child’s support during the year.
Under Utah law, there is no presumption or provision as to which parent (custodial or non-custodial) shall be allowed to claim a child as a dependent for income tax purposes. If the parties cannot agree, the court will decide which parent shall claim a child for tax purposes. The judge is to consider each case individually and determine which parent should be allowed to claim a child based upon the parties’ relative contribution to the cost of raising the child, the relative tax benefit to each parent and any other appropriate factors. The court will not allow a non-custodial party to so claim a child unless the parent is current in his/her child support obligation.
Child support is not taxable as income to the receiving party nor deductible as an expense to the paying party.
WHAT ARE THE STANDARDS IN UTAH FOR THE DIVISION OF MARITAL AND PERSONAL PROPERTY OF THE MARRIAGE?
The law recognizes that spouses who work in the home and work outside the home both contribute to the property acquired during the marriage, regardless of the income source.
Utah requires an equitable, though not necessarily equal division of such property. This depneds on the length of the marriage, the age and health of the parties, their occupations and the amounts and sources of income and other related matters.
The court may determine that the spouse being awarded the custody of the children needs more of the personal property (household furnishings, etc.) to adequately care for the children. Thus, often the possession of the house and the majority of the furniture will be awarded to the person awarded custody of the children.
Each of the parties will be awarded his or her own personal property, clothing, belongings and effects.
The courts have the power to apportion all property owned by either or both of the spouses, regardless of whose name it is in or where it is located.
Usually each party is entitled to keep any inheritance that they received during the marriage provided that the inheritance has been kept separate and distinct and not mixed with other joint property of the parties.
If the parties divide their property by agreement, the judge may review the decision to be sure that it is equitable. The division of property is difficult to reopen after the divorce is final.
HOW WILL A COURT DIVIDE EQUITY IN A HOME OR REAL PROPERTY ACQUIRED DURING THE MARRIAGE?
The court will usually equally divide equity in a home and real property acquired during the marriage.
Sometimes the court will order that a marital home be sold immediately and the equity divided between the parties, or one party may purchase the other party’s interest in the home. Other times, especially if there are minor children, the court will grant a lien or claim against the marital home to one party and grant the use and possession of the home to the other party. The party granted possession will be required to pay the non-possessory party the lien upon the occurrence of the first of certain events. Typically those events are:
(a) the youngest child of the parties reaches eighteen (18) years of age, completes high school or otherwise becomes emancipated;
(b) the possessory party remarries;
(c) the possessory party ceases to use the home as the primary residence;
(d) the possessory party cohabits with a person in the home; or,
(e) any person other than the parties and/or their children reside in the home.
HOW ARE PENSIONS AND RETIREMENT ACCOUNTS OF THE PARTIES DIVIDED?
Retirement accounts, pensions, 401(k) accounts and I.R.A.’s accumulated during the marriage are assets of the parties which are divided by the court. Each party is entitled to one-half (½) of such accounts that were acquired during the parties’ marriage. These accounts should be specifically mentioned in the divorce decree.
In order to formally divide these accounts and to protect the interests of the parties, a special court order called a Qualified Domestic Relations Order (QDRO), separate from the divorce decree, may be required. The QDRO, once signed by the court, is given to the administrator of the retirement program. The contents of a QDRO will vary from retirement program to retirement program, as does the cost of preparation. Usually, based upon the QDRO, a new separate retirement account is established for the non-employee spouse and the benefits will be paid pursuant to the terms of the retirement program.
WHAT ARE THE STANDARDS IN UTAH FOR THE DIVISION OF DEBTS OF THE MARRIAGE?
There is no set standard for the division of debts in a divorce action. The court has the power and the duty to make a fair division of the debts incurred during the marriage.
The person most able to pay usually is responsible for the debts. The court also considers who will benefit from the payment or who has benefitted from that particular debt. Thus, whoever is awarded the house will usually be required to make the mortgage payment; the person awarded the car or the furniture will probably have to pay for the outstanding debts on those items. Debts or obligations which were used for the family benefit such as food, utilities, clothing, rent, etc. will be the responsibility of both parties and usually divided on an ability to pay basis.
Although the court may order a party to pay a particular debt, that order does not alter the contractual relationship between the two parties and the creditor. Thus, if the court orders one party to pay a credit card debt and that party fails to make the payments, the credit card company may still pursue both parties for the debt because of the original contract. The remedy in such a case of non-payment is an enforcement proceeding in the divorce action asking the court to force the obligated party to comply with the court order and to pay the debt. Similarly, the fact that one party is awarded possession or ownership of a former marital home (and ordered to pay the mortgage) does not remove the other party’s name from the mortgage or purchase debt on the home.
As part of the divorce, parties should close all joint credit accounts or transfer balances owed to individual accounts of the party that will be responsible for that debt.
After a divorce or separation, parties find that two households are more expensive than one — two rent payments, two phone bills, etc. The division of property and debts, plus child support, alimony and additional expenses usually mean that both spouses must assume a lower standard of living than they enjoyed during the marriage.
WHAT IS ALIMONY?
Alimony is support money from one former spouse to the other. At one time, only women could receive alimony; now, by law in Utah and most states, a man can receive alimony, especially when he is “dependent,” that is, unable to support himself. Some states have changed the name from alimony to “spousal support.”
Alimony is a payment to a former spouse as a continuation of the marital, moral and legal obligation to support a spouse, especially a dependent spouse. When awarding alimony the court considers the financial condition of both parties, both parties’ earning ability, the standard of living that existed at the time of separation and the length of the marriage. Alimony automatically ends when the spouse receiving it remarries, because the law presumes that someone else now has the marital, moral and legal obligation of support. Alimony is also terminated when the spouse receiving it cohabits or resides with a person in a sexual relationship. Alimony normally will not be ordered for a period longer that the length of the marriage, except in extenuating circumstances.
The classic example of when alimony will be granted to a wife is when she has remained in the home, raised children during many years of marriage, has never worked outside the home, has no employable skills and is totally dependent on her husband for support. In contrast, alimony will probably not be awarded after a marriage of short duration, with no children, where both spouses are healthy, work or have employable skills and have the ability to support themselves.
Alimony may be granted for a short transitional period, such as a year or two, so that the other spouse can finish school, relocate, acquire job skills, etc.
“Token alimony” is a nominal or small amount of alimony (such as one dollar per year) awarded in a decree simply to keep the alimony and the obligation of support in the court records. If no award of alimony is made in the decree, the spouse may be unable to return to court and seek alimony. If “token alimony” is awarded the spouse can more easily return to court and seek increased alimony when there is a substantial change in either spouse’s circumstances.
In most cases alimony is tax deductible to the person making the payments and must be reported as taxable income by the person receiving the payments.
IS HEALTH INSURANCE AVAILABLE AFTER A DIVORCE?
Group health, accident, etc. insurance coverage provided by an employer is usually available only to dependents of an employee. Upon a divorce, the non-employee spouse is no longer a dependent and thus no longer eligible for group health, accident, etc. insurance from the employer.
A federal law (referred to as “COBRA”) and Utah law require that, under some circumstances, health insurance coverage be made available to the former spouse of an employee for a limited period of time (some times as long as 36 months) after a divorce. The employer may require the payment of an increased premium for such extended coverage. A divorce decree may provide that one spouse cooperate in securing COBRA or extended coverage, if available. Arrangements for such coverage will be made through the former spouse’s employer’s personnel or employee benefit department.
CAN I DATE WHILE MY DIVORCE IS PENDING?
A divorce may be pending for three (3) months or more before it is final. During that time, the parties are still legally married and cannot re-marry; thus, people in a pending divorce are not “single.”
If, while being legally married to one person, a spouse dates another person that relationshp might constitute grounds for divorce or grounds for a counter-suit in the divorce action and may cause friction between the parties. The fact that one spouse is dating while the divorce is pending may also give rise to threats that this will prevent the dating spouse from being awarded custody of children. The court may consider dating, but this alone probably will not prevent the dating spouse from being awarded custody.
As a practical matter, dating while a divorce is pending is usually not a problem.
MAY A PRIOR NAME BE RESTORED TO A PARTY IN A DIVORCE?
A prior name (birth name, prior married name, etc.) may be restored to a party as part of the divorce.
A party may also simply resume the use of the prior name even without mention in the divorce decree. However, if the name you wish to use is not mentioned in the divorce decree, other documentation may be necessary to change your name on your driver’s license, Social Security card and other forms of identification. To resume the use of your maiden name the DMV may request to see a certified copy of your divorce decree and your birth certificate.
ARE COURT FILES IN DIVORCE CASES OPEN TO THE PUBLIC?
In general, most divorce documents are private and not open to the public. However, the final Decree of Divorce is available to the public.
Except upon a court order, your entire divorce file may be examined only by the parties, their attorneys, the court, and, in some cases, the Office of Recovery Services (O.R.S.).
Hearings in divorce actions are open to the public. However, members of the public rarely, if ever, attend such proceedings. If sensitive information or testimony is to be presented in a hearing, the judge may exclude the public.