Divorce

DIVORCE

Unfortunately, statistics indicate that approximately one-half of all married couples will end their marriage in divorce.  Nobody gets married hoping that the relationship will fail.  Thus, the prospect of divorce nearly always brings sorrow, stress, disappointment, and fear for one’s future.

Most individuals who seek legal counsel and representation in a divorce have already attempted to reconcile and salvage the marriage by attending counseling, seeking help from family, friends, or ecclesiastical leaders, or perhaps through a temporary period of separation.  Honest, clear, and sound advice is critical at this juncture to ensure that one understands their rights, responsibilities, and potential outcomes under the law.

The issues potentially at play in a divorce can be basically divided into four categories: 1) Custody and Visitation, 2) Child Support, 3) Alimony (also known as spousal support), and 4) division of Property and Debts.  For those couples without children, the matter is less complicated by eliminating any custody or child support concerns.  A closer look at each of these categories reveals why it is advantageous to have the assistance of an experienced attorney during the divorce process.

Custody and Visitation:

For a divorcing parent with minor children, custody and visitation tends to be the most important issue.  There are two separate and distinct types of custody in Utah: 1) physical custody and 2) legal custody.  Physical custody is based off of overnights at each parent’s residence.  Legal custody grants the right for a parent to have access to information and to be involved in decision-making in their child’s life.  Each type of custody will be arranged as either sole, joint, or split.

Where custody is contested and the parties cannot agree on a parenting schedule and custodial arrangement, the court usually orders a custody evaluation to assist in determining what is in the best interest of the children.  Custody evaluations are conducted by court-appointed experts who interview the children and spouses, observe their interactions, and may conduct psychological testing.

Having a qualified family law attorney assist you with your goals for custody and visitation will prevent unintentional mistakes or consequences not in the best interest of your children.  An honest, open discussion with your attorney will also manage your expectations and give you a road map for navigating through the tense and often worrisome times while you adjust to shared parenting.

Child Support:

Under Utah law, a child support obligation is calculated based on the parent’s gross monthly incomes, the number of minor children, and the custodial arrangement.  Typically, the parent who has sole or primary physical custody is awarded child support from the other parent.  Because child support is awarded using a statutory mandated calculation, the main point of argument is the amount of gross monthly income a parent can or does earn.  In situations of underemployment, unemployment, self-employment, or multiple income sources, determining a parent’s gross monthly income can be complicated.  A parent who pays alimony or child support to a previous spouse will also be able to adjust his or her gross monthly income by deducting those amounts.

In addition, parents will likely share the out-of-pocket expenses incurred on behalf of the minor children for medical, dental, or day care costs.  Reimbursement to the party who pays for these services is considered part of child support and is the duty of each parent.

Having an attorney guide you through the statutory requirements and circumstances unique to your case in establishing or defending against a child support award will simplify the divorce action and ensure that your rights are protected.

Alimony:

Alimony is perhaps one of the least understood concepts in divorce law.  Spousal support, as it is often called, looks at the parties’ separate financial circumstances (usually on a monthly basis) and ensures 1) that a spouse does not have to rely on state assistance or third parties for financial support, and 2) that the parties are both able to enjoy as close to the same standard of living during the marriage as possible.  Alimony is high fact-sensitive and analyzed on a case-by-case basis since each marriage differs in standard of living and income potential.

However, unlike the Hollywood movies, alimony is not automatic and never used to punish or reward a spouse.  Instead, a three-prong test is employed to determine whether alimony should be awarded.  First, the receiving spouse’s financial need is analyzed (usually on a monthly basis).  Second, the receiving spouse’s ability to provide their own income is scrutinized to verify that he or she is doing all possible to support him or herself.  Finally, the paying spouse’s ability to pay alimony is analyzed (again, usually on a monthly basis).  In rare circumstances, it is possible for a court to require a spouse to pay the other alimony even where he or she does not necessarily have the total income to do so.  Other factors are taken into consideration such as length of the marriage, whether there are any minor children, whether a spouse contributed to or supported the other spouse’s education, the fault of a spouse for the breakdown of the marriage, etc.

Alimony cannot be awarded for a length of time beyond the duration of the marriage absent extraordinary circumstances and alimony automatically terminates upon the cohabitation, remarriage, or death of the receiving spouse, unless agreement to the contrary is made.

Because of the fact-sensitive and case-by-case approach to alimony taken by courts, it is imperative that a person have skilled and aggressive representation to put forward the arguments and evidence in favor of awarding or defending against alimony.

Property and Debts:

Upon divorce, a couple’s property is divided and the responsibility for payment of debts is assigned out between them.  Depending on the nature and amount of property and debts involved, the process can be simple or extremely complicated.

In Utah, property first must be categorized as either marital or separate, then a fair and reasonable distribution of the marital property will occur while property designated as separate will be awarded to the person who holds such free and clear from any claim by the other spouse.

It is convenient to further distinguish property into one of three categories: 1) real property (i.e. home, land, rentals, etc), 2) personal property (i.e. vehicles, furniture, artwork, household items, etc.), and 3) financial assets or business interests (i.e. bank accounts, retirement accounts, shareholder or business rights, etc.).

Regarding debts, sometimes it is easy to assign responsibility for a debt because a spouse keeps an indebted item of property (i.e. mortgage payable by person who remains in the marital residence, car payment payable by spouse who is awarded that vehicle, etc.).  Other times, as is common in the case of a joint credit card or personal loan, both parties have benefited from or used the funds for family expenses, and might each be responsible for one-half of the debt.  The assignment of debt responsibility provides great flexibility if the divorce is settled because one spouse may decide to take on most or all of the debt, but be awarded most or all of the property, or waive the duty to pay alimony.

If a court is given the task of awarding property and assigning debt responsibility, the general presumption is that an equitable division should occur on a case-by-case basis.  However, a trial court has great discretion in this exercise and will make orders that it deems appropriate given the parties’ circumstances, age, earning potential, child support and alimony awards.  Having an experienced family law attorney can pay great dividends in ensuring that your rights and ability to financially move forward in life are protected.

TWO APPROACHES TO DIVORCE

There are essentially two approaches to a divorce 1) an uncontested approach, or 2) a contested approach.

An uncontested approach essentially means that the parties do not wish to go to court and argue over any of the issues discussed above.  Rather, these couples are able to determine for themselves and agree on how to resolve the various circumstances of their divorce.  At times this can be accomplished simply by having a family law attorney draft the necessary paperwork (which at a minimum will be 10 separate documents with varying purposes and requirements) and filing it with the court.  Usually a reasonable flat fee may be charged for this service which keeps costs low during a financially stressful time.

Although not strictly necessary, if each party obtains an attorney, it is possible for the attorneys to assist the parties create and execute a settlement and file it with the court.  In other circumstances, the parties may desire to attend mediation in order to avoid the need to litigate in court.  Mediation provides a formal dispute resolution setting sometimes helpful if the issues are complicated, or if the parties need a neutral third-party to assist with the communication between parties.

For those couples without minor children, there is a mandatory 90-day waiting period before a judge will sign a Decree of Divorce.  It is possible for this waiting period to be waived by the court, but a special request and certain documents will need to be filed with the judge.  For those with minor children, each party must attend two divorce classes.  As a side benefit, by attending the mandatory divorce classes, the 90-day waiting period will be automatically waived without further request.

A contested divorce action occurs when one party files a Petition for Divorce with the court and serves it on the other party along with a Summons requiring him or her to file a formal Answer to the Petition for Divorce no later than 20 days (if served in Utah) or 30 days (if served outside of Utah) from the date served.

In some circumstances, after filing an Answer, the parties may be able to work towards a settlement and avoid the need to appear before a judge.  However, there may be a need for a party to seek the court’s assistance in making certain temporary orders at the outset of the case which will govern the parties during the proceedings.

Unfortunately, in highly contested actions, especially those involving custody and visitation or complex property issues, the reality is that a divorce action may last for many months as your attorney prepares for trial by gathering evidence and questioning the opposing party and other witnesses as needed.  It is absolutely crucial for a party to hire an attorney who navigates through the case wisely and efficiently so the best possible outcome can be obtained without unnecessary contention or expense.

The family law attorneys at Dexter & Dexter are committed to excellent representation regardless of whether the case is contested or uncontested.  Because they specialize in family law, they are equipped with knowledge and advice that can greatly reduce the stress of divorce and ensure the best possible outcome.


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