Top 10 Divorce Questions to Divorce Attorney - Melvin
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Top 10 Divorce Questions

by Melvin Cook

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1) Do I need to prove fault in order to get a divorce in Utah?

No, most states, including Utah, have no-fault divorce laws. This means that a divorce may be granted on the grounds of “irreconcilable differences” without the need of proving one party or the other is at fault. This is not to say that the issue of fault does not come up in divorce cases. But a divorce may be granted without proving fault.

2) How long will the divorce process take?

Unfortunately, there is no pat answer to this question. It depends on a number of factors, such as whether the divorce is contested or uncontested. If the parties agree with respect to all of the issues, it will be an uncontested divorce. Uncontested divorces may be entered quickly. In Utah there is a ninety-day waiting period before the divorce can become final. The ninety day waiting period can only be waived in extraordinary circumstances. Contested divorce cases may take longer.

For example, if the parties dispute custody of the children, the case may take months to more than a year to reach a conclusion. If the parties have significant assets, such as a business, that need to be divided, each party will need sufficient time to gather all the financial information they need to prepare their case. This is accomplished through a process known as “discovery.” However, attorneys have an ethical obligation to avoid undue delays and to move each case towards resolution as efficiently as possible, considering their clients’ particular needs and circumstances. Our firm attempts to resolve divorce cases as efficiently and expeditiously as possible, while at the same time giving maximum attention to each client’s unique needs.

3) Must the parties attend mediation in a divorce case in Utah?

Unless the divorce is uncontested, the answer is yes, in most cases. Before a divorce case may proceed to trial in Utah, the parties must first participate in good faith in at least one session of mediation. Mediation is a confidential process in which the parties engage in candid settlement negotiations which are protected from being disclosed later in Court. The parties are not required to reach an agreement during mediation, but they are expected to negotiate in good faith and to make their best efforts to resolve the issues in the case. The mediator’s role is that of a neutral facilitator, to help the parties discuss settlement possibilities.

The mediator’s role is not to decide the case, but simply to help the parties reach a mutually agreeable resolution. The theory behind the mandatory mediation requirement is that parties will often benefit from the opportunity to craft their own divorce decree, rather than rely on the Court to impose a solution which sometimes does not match either party’s expectations. Of course, there are circumstances where mediation does not result in an agreement, and the case then proceeds to trial. Because mediation is confidential, the parties cannot use any settlement discussions as evidence at trial, and cannot compel the mediator to be a witness at trial.

Utah has many experienced and well-qualified divorce and family law mediators to help with the mediation process. Our firm prepares diligently for mediation in an attempt to resolve all of the issues at that stage if possible. If mediation is unsuccessful, our firm works equally diligently to prepare the case for trial and reach a resolution as quickly as possible. At each stage we focus on what is best for each individual client in their particular circumstances.

4) How will marital assets be divided in a Utah divorce case?

First of all, it is important to distinguish between marital property and separate property. For example, each party is awarded any property they brought into the marriage as their own separate property. Each party is typically awarded any inheritance they receive as their own separate property. Personal injury or workers compensation awards are typically considered separate property, at least to the extent they reflect compensation for things of a personal nature such as pain and suffering, or permanent impairment, Property can lose its separate character under certain circumstances, such as when it is commingled with marital property and/or there is clear intent by the party owning it to make it part of the marital estate.

Marital property typically encompasses all property accumulated by the parties during the marriage (with certain exceptions as noted above, such as inheritances or personaI injury and workers compensation awards). This includes but is not limited to bank accounts, stocks, bonds, retirement accounts, real estate, vehicles, businesses, furniture, artwork, and other personal property that the parties have accumulated during their marriage. If the parties have accumulated assets during the marriage, they must be divided fairly and equitably. It is usually best if the parties try to figure out the best way to do this. However, in order to accomplish this, both parties need free and open access to all of the financial information so as to identify and determine values for all of the marital assets. Utah law requires full financial disclosure from each party.

Each party must prepare and share with the other party a detailed financial declaration, showing all of their assets and obligations, as well as income and expenses. If one party or the other attempts to conceal assets, this behavior may be punished by the Court through an appropriate remedy, such as by awarding the concealed asset(s) to the innocent party.

Certain assets may require a professional in determining their value. For example, a certified real estate appraiser may be needed to determine the value of the marital home or other real estate, especially in rapidly changing market conditions or where tax appraisals do not accurately reflect economic reality. In certain situations a market analysis by a licensed realtor may provide a reasonable approximation of real estate values. A certified business appraiser may be needed to determine the value of a marital business if it is not susceptible to easy valuation. The parties themselves may be able to determine the value of many of their assets, such as by consulting blue book values for vehicles or by estimating resale values of personal property items such as furniture, paintings, books, clothing, CDs, DVDs, computers, electronics, tools, televisions, jewelry, etc. These items are typically valued at what they might sell for at a garage or yard sale, not by how much they would cost to replace.

If the parties cannot agree on the best way to divide all their marital assets, then the Court will need to make the decision. Thus, marital assets are subject to equitable division by the family law court. Typically, this means the marital assets will be divided evenly (as close to 50/50 as possible), with each party receiving a one-half share. However, there may be unusual circumstances which justify one party or the other being awarded a disproportionately large share of the assets. An example might be where one party is at a substantial economic disadvantage compared to the other party, such as a spouse who has sacrificed career opportunities in order to focus on other important aspects of the marriage, such as child rearing.

Alimony may be awarded to mitigate this economic disadvantage as well. An experienced attorney can help prepare a case that will achieve the best possible results in dividing marital assets.

5) What types of child custody are there in Utah divorce cases?

This question cannot be answered exhaustively in a short space. An experienced attorney should be consulted for more detailed advice regarding any individual custody situation.

In general terms, however, there are four basic types of child custody. They are sole custody (sometimes known as primary custody), joint legal custody, joint physical custody, and split custody.

Sole custody is where one parent or the other has the children the majority of the time, with the non-custodial parent having parent-time with the children as the parties may agree. If the parties cannot agree, then the non-custodial parent has no less time with the children than the parent time set forth by statute at Utah Code Section 30-3-35.

This statutory standard is intended to be a minimum and not a maximum. It provides for parent time once a week during the midweek; i.e, a Tuesday, Wednesday or Thursday at the option of the non-custodial parent. The midweek parent-time visit starts after school or from 5:30 p.m. to 8:30 p.m., again at the option of the non-custodial parent. The parties will also split the holidays evenly. The non-custodial parent will have extended time in the summer of four consecutive weeks, two of which are uninterrupted.

Joint physical custody is more of an equal time-sharing arrangement, in which each parent has at least 30% of the overnights with the children (i.e., 111 overnights). So, it can be anywhere from a 70/30 split up to a 50/50 split of parent-time with the children. The parties share expenses, in addition to child support being paid. In joint physical custody, one party or the other may be designated as the primary caretaker, or one party’s home may be designated as the children’s primary residence. Utah Code Section 30-3-10.1 defines joint legal and joint physical custody.

Joint legal custody refers to joint decision making. It allows both parents free and open access to the children’s educational and medical records. It allocates decision making responsibility to one parent or the other in specific areas, or provides for joint decision making. It requires a parenting plan. A parenting plan is filed by the parties. The parenting plan must specify decision making procedures, including what will happen if the parties cannot agree on major decision.

Split custody is a parent-time arrangement in which each parent has one or more of the children the majority of the time.

6) If the parties cannot agree on custody of the children, how do the Courts determine the optimal custody and parent-time arrangement?

This, of course, is a complicated question. But, fundamentally, the Courts will make this determination based upon the best interests of the children. This begs the question: how do the Courts determine what is in the children’s best interests? There are a number of important factors to be considered in this calculus. They are things such as: the children’s preference, the benefit of keeping siblings together, the strength of the bond between the children and each prospective parent, the respective moral character of each parent, financial conditions, religious compatibility of the children with each parent, the general interest in maintaining previously established custodial arrangements where the children are happy and well-adjusted, among others. The Utah Rules of Judicial Administration, Rule 4-903 set forth factors to be considered in any custody evaluation.

See https://www.utcourts.gov/resources/rules/ucja/ch04/4-903.htm (last visited on March 24,

2014).

Statutory factors the Court will consider are found at Utah Code 30-3-10.

7) How is child support determined in a Utah divorce case?

Utah has Uniform Child Support Guidelines, which are used to calculate child support for different custody situations, considering each parties’ gross monthly incomes. If the parties’ incomes are easy to calculate, which they are if each party is a W2 employee, then the child support calculation is very easy. It is simply a matter of plugging in the numbers on a child support worksheet. Child support calculators can be found on the website www.ors.utah.gov.

See https://orscsc.dhs.utah.gov/orscscapp-hs/orscscweb/action/public/custodyWorksheet/show

 

8) How do the Courts determine alimony in a Utah divorce case?

The Court considers at least the following factors:

1) the financial condition and needs of the recipient spouse;

2) the recipient’s earning capacity or ability to produce income;

3) the ability of the payor spouse to provide support;

4) the length of the marriage;

5) whether the recipient spouse has custody of minor children requiring support;

6) whether the recipient spouse worked in a business owned or operated by the payor spouse;

7) whether the recipient spouse directly contributed to any increase in the payor spouse’s skill by paying for education received by the payor spouse or enabling the payor spouse to attend school during the marriage.

The first three of the above-mentioned factors are known as the Jones factors and are probably the most important factors in determining permanent alimony. They stem from the Utah alimony case of Jones v. Jones, 200 P.2d 1072 (Utah 1985).

Interestingly, Utah also has a provision that provides that the Court may consider the fault of the parties in making and setting the terms of an alimony award. See Utah Code 30-3-35 (8)(b).

Alimony may not be ordered to continue longer than the length of the marriage, except in extenuating circumstances. Alimony automatically terminates upon the death or remarriage of the recipient spouse. Alimony terminates if the paying spouse proves that the recipient spouse is cohabitating with another person..

9) May a divorce decree be modified?

Yes. The party seeking to reopen divorce issues must prove a substantial material change of circumstances not foreseen at the time the divorce was entered.

10) What if I need alimony or child support right away, and cannot wait until the divorce is final?

A motion for temporary orders may be brought. The Court may make temporary orders for child custody, child support, alimony, property division, debt division, and any other orders that may be needed pending the final resolution of the divorce. These temporary orders typically continue until final orders are entered, although they may be modified under certain conditions.

If you have any questions regarding divorce in Salt Lake City, contact an experienced Salt Lake City Divorce Attorney, Melvin A. Cook, from the Cook Law Firm today for a consultation!

This material should not be construed as legal advice for any particular fact situation, but is intended for general informational purposes only. For advice specific to any individual situation, an experienced attorney should be contacted.

Contact a Salt Lake City Attorney Committed to Protecting Your Rights

When it comes the family law and social security disability, each client and case is different. It is also important to select an attorney with the experience, skills and professionalism required to address your legal issues. To learn more, contact the Salt Lake City law offices of Melvin A. Cook and schedule an initial consultation to discuss your case.

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