Category Archives: Divorce Law

When Is Divorce A Good Idea?

When Is Divorce A Good Idea?

Deciding whether you’re in a failing marriage that’s beyond repair is obviously not a choice that comes easily—especially when you’ve put in the work to try and salvage what feels like a loveless partnership. You might’ve chosen to overlook those first signs that divorce is the best move for one (or both) of you, and you’ve been coping with an unhappy relationship for some time. Or, perhaps you hope that the union’s still got some fight left and you’re not ready to leave. It’s not a decision to take lightly. But now, whether it’s a matter of one too many arguments, trust-sapping infidelity, or something else entirely, you’re clearly contemplating a permanent split.
Many relationships can be revived, but if there’s been too much neglect, damage, or depletion of all the ‘nutrients’ necessary to cultivate a healthy relationship, it may have reached its final expiration date.”

Here are the most common signs that you should consider divorce, and that you may be ready to move on to the next chapter of your life.

You never argue.

Believe it or not, you’re supposed to argue. Silence and avoidance can be detrimental to a relationship. When you just can’t be bothered anymore, it means something is missing. While not all fights are productive, it’s healthy to be able to resolve arguments in a way that benefits the marriage, you fight for each other. You fight for the relationship. The biggest problem is when there’s no fight left.

Winning is everything.

While never fighting (i.e. complete detachment) may be one sign of impending divorce, the way you argue when you do have a disagreement is another indication. “Ideally, you want a conflict to be resolved in a way that preserves the relationship, if fighting is more about pointing fingers, placing blame and the need to ‘win,’ the focus becomes power and not connection, and that is a red flag.

You want to provoke your spouse.

When you find that you’re constantly testing how far you can push your marriage before it completely shatters, you’re playing divorce roulette. Once you start trying to push your spouse’s threshold, it’s possible that you subconsciously want to end things but are afraid to make the move. For example, if you leave your computer open to an inappropriate (read: flirtatious) email exchange, you may secretly be hoping your spouse finds it so they’ll initiate a conversation about why you’ve been unhappy.

They send your heart racing.

We’re not talking the pitter patter of love. We’re referring to full on, heart rate rising stress. If you have a negative physical reaction when your spouse walks into the room, it’s important to pay attention to what your body is telling you.

Along those same lines, if your heart grows heavy and your stomach balls up into a knot every time you think about staying in your marriage, your body is letting you know it might be time to go. Our brains can lie to us, our body on the other hand, is the incorruptible truth-teller.

You hide your real self.

If you feel like you’ll be rejected if your spouse sees “all” of who you are, it’s impossible to be in a fulfilling relationship, a relationship expert and paternity court judge. When you constantly have to filter yourself, or keep your beliefs away from your spouse, it shows a lack of respect in your opinion. And that’s tough to fix.”

You’re overcompensating on Facebook.

Social media usually manufactures an extremely edited version of our lives. It’s also a space in which it’s easy to craft an illusion, hiding the reality of an unhappy marriage. According to Morris, when you or your partner suddenly start to overshare on social media, it’s usually an attempt to cover up the truth. Constantly feeling the need to show the world how great your relationship is—when, in reality, you know it’s not—may be a sign that things are falling apart.

When the thought of leaving scares the hell out of you, and yet…

It can be exciting to think about the life you could be living if you weren’t with this person any longer—the freedom, the adventures, the passion. But those fantasies are centered on what happens when you’ve already left the marriage. Take notice of what it feels like to imagine actually leaving, not just living this new life of yours sans partner. If the thought of leaving scares you, yet you’d still rather leave than stay, it’s a pretty strong indicator that it’s time to go.

Kids (or work, or friends) come first.

All of these outside influences can positively impact a marriage. And, of course there will become times when other factors (an ailing mom, having to focus on your child) will require your full attention. But, when any one thing takes over, leaving little room for a partner to dedicate time and attention to the relationship, it can take its toll. When those influences are all they talk about and all they think about, it can drive a wedge between spouses. The chasm can become so wide that the prospect of divorce begins to stare them right in the face.

It’s “I” and “me” and never “we.”

Marriage takes teamwork, and that means coming together for a common goal. When the team mentality stops, it may be a sign your marriage is over, couples are encouraged to think of their relationship in terms of “we” instead of “I.” The language we use when talking about our relationships can predict a break up. The pronouns you choose (I, me, mine, our, us, we) are a sign of how close you feel to your partner. So, look out for what expressions you find yourself (or your spouse) using.

You push back when others say, “stay.”

We rarely broadcast our relationship struggles to those around us, so it’s to be expected to get pushback from others who can’t seem to understand why you’d want to make this choice. A friend or family member’s objections may just be the gut-check you need. Leaving a marriage of any length will eventually provide the opportunity to examine your decisions, and your heart, , and you can only truly do this if you know you’ve made the decision that makes the most sense for you, not anyone else.

They stop being your go-to person.

Who do you call when you’re having a bad day? Who’s the first person you text when you hear good news? There’s an amazing rainbow outside your window…who—besides Instagram—do want to send the photo to? Your partner should be the first person you go to, in crisis or in celebration. When either one of you no longer wants to share important moments, you stop feeling connected. That disconnect can cause major loneliness in a relationship, which can often lead to divorce.

Forgiveness doesn’t seem like an option.

Infidelity in a marriage is definitely a road block, but not always a deal breaker. It’s possible to move on and have a healthy relationship. However, if both spouses choose to stay married, it’s imperative to fully forgive and make peace with your partner. If you’re dredging up past issues every time there’s an argument, or are holding onto resentment, then it’s most likely the marriage won’t survive.

You already have an exit strategy.

Are you moving money into different accounts? Looking for a new job so you have even more financial independence? Once you start planning like that, it’s a sign that you believe your marriage isn’t working, While she acknowledges that taking steps to ensure you’re not reliant on anyone and that you have your own savings can certainly be a good thing, it also means that you may have one foot out the door without realizing it. And when you’re not willing to be “all in,” your marriage could be on the outs.

It’s hard. All the time.

While every relationship has its rocky periods once in a while, conflict and feelings of disconnection shouldn’t be chronic. If it’s hard far more often than it is inspiring or pleasurable, it may be time to move on.”
You’re constantly wondering if you should leave.

There’s one thing about confusion, It is usually a lie. We block our own answers when we tell ourselves we don’t know. You are not confused about what to do, but you are afraid of the action you know you should probably take. In other words, if you are constantly wondering, then you likely already know your answer. When you’re considering divorce ― or reeling from your ex’s decision to end the marriage ― it’s easy to focus on the negatives: How will I possibly get by living on my own again? How will the kids be impacted by this? Am I doomed to be alone for the rest of my life?

Your Spouse Is A Serial Cheater.

It possible that your spouse just isn’t cut out for marriage or monogamy, even if they seemed to have wanted to get married. They also may put the blame for their philandering and untrustworthiness on you and may accuse you of being too jealous or controlling. When trust is broken in such a painful way, it is difficult to recover, and it if your partner has had multiple affairs, it is highly improbable that there will be enough good will for your marriage to be viable. Even if you decide to stay in the marriage, but it is doubtful that you will ever be able to fully trust your partner if they have cheated multiple times.

When you can’t get past a major breach of trust in the marriage despite many efforts and discussions, that’s a telltale sign your marriage may be beyond repair.

There’s Been An Instance Of Domestic Violence.

The reality is that, more likely than not, if there has been one incident of domestic violence, that there will be more. If you are in doubt about this, ask yourself the following question: If you had a daughter who was the victim of domestic violence, would you encourage her to stay married? Hopefully, your response would be a resounding, ‘No” When your health and safety are compromised by staying in the marriage, there should be no question about whether you should leave.

Reasons Divorce Is Preferable To Staying In An Unhappy, Unhealthy Marriage.

Marriage may give you a sense of security but divorce gives you a new lease on life.
Staying in a bad marriage can provide security because at least you know how your life will go. But getting a divorce gives you hope ― the hope to be who you want to be, the hope to be happy and the hope to find someone else to love.

Being a single parent is better than modeling an unhealthy relationship.

If you’re a parent with young kids, getting a divorce is better than staying in a bad marriage because these are formative years for them. They will likely seek out and emulate the types of relationships they see modeled. I want my relationships to be happy, healthy and mutually respectful, so that my children never settle for anything else in their own lives.

Divorce clears the way for you to meet the right partner.

Divorce is painful but it’s kind of like pulling off a Band-Aid: The anticipation is horrible but once it’s over, it’s pure relief. Bonus: It allows you the freedom to meet the person you were meant to be with!
You get to focus on you for once.

After divorce, you find yourself again and fall in love with the wonderful attributes that makes you you. As a mother especially, you can parent with just your own mama instincts and all your love and energy can flow into your little one(s). You find genuine peace and happiness and an appreciation for life that may have been sucked out of you during your bad marriage.

Divorce isn’t the worst thing that can happen to your kids. Enduring a hostile home life is.

After my first wife and mother of my five children left us permanently, I felt like going through divorce was the worst thing that could happen to a family. So when my second marriage was falling apart, as my kid’s sole and single parent, I was desperate to protect them from the trauma of another divorce. As a result, I kept the family in a situation that wasn’t good for any of us. The reality is, the worst thing for your children is for them to live in a hostile home and have them see you unhappy. My life and my children’s’ lives have gotten better and happier with each passing day after the divorce.

There’s a big difference between loneliness and solitude.

My divorce helped me discover the gift of solitude when I once experienced the pain of loneliness. Now that I’ve learned to enjoy being alone, I’m free from that awful feeling of separation that comes from being with the wrong person.

You and your partner may be stifling each other’s growth.

I feel that divorce should rarely be the first choice because generally the only thing keeping a ‘bad’ marriage from being a ‘good’ marriage is sustained mutual effort. That being said, there are times that divorce is the best choice in order to allow both partners to grow and achieve the life they desire, and in some scenarios, the life they deserve.

A happier parent is a better parent.

Learning to let go and step into the unknown may be the single most important thing you can do for your own sanity and the sanity of those around you. Divorce proves that you have the courage to live a life of happiness. And if you’re happier, you’ll be a far more effective parent.

You can devote your energy to other important areas of your life.

If you have done all the work of trying to make the marriage better and nothing is changing, finding the courage to leave and move forward pays off in the long run. The pay off? You stop putting all your energy into a relationship that no longer works and put more energy into yourself and your kids.

You deserve a partner who’s just as invested in the relationship as you are.

Divorce is preferable to a marriage without love. We all deserve to be loved. I never want to be in a marriage where that partnership isn’t sacred and a priority.

Relationships are complicated, to say the very least, and even the most stable of marriages will go through intense highs and extreme lows. So if you’re asking yourself, Should I get a divorce?” know that you’re not alone — a 2015 poll found that half of all married couples have contemplated divorce. But determining whether or not your marriage should end is an entirely personal decision, and there are a number of factors that will play into you eventually choosing to either work through your relationship issues, or call it quits.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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When Do Alimony Payments Stop?

When Do Alimony Payments Stop?

Spousal support, also commonly known as alimony, refers to recurring monthly payments made by one spouse to the other spouse when a couple is divorced or legally separated. Although the laws and requirements for spousal support will vary by state, it is usually intended to assist the recipient spouse in gaining financial independence.

Spousal support payments also help to ensure that the receiving spouse can retain the lifestyle they have become accustomed to during their marriage or at any point before they were legally separated or divorced from the supporting spouse. In most cases, the spouse who has the higher salary will typically be ordered to pay spousal support to the other spouse. In other words, whichever of the two spouses is in worse financial condition will normally be the spouse who is allowed to collect alimony.

Generally speaking, a court may order spousal support payments in any of the following situations:
• If one of the spouses has a disability or other medical condition that prevents them from being able to support themselves or get a job;
• If there is a significant imbalance between the two spouses regarding their earning potential and salary;
• If one of the spouses was forced to quit their job to stay home and take care of the couple’s child or children, while the other spouse was permitted to work and earn a living; or
• If one spouse helped to support the other spouse while they pursued an activity that would lead to potentially receiving a higher income (e.g., if one spouse worked and the other attended a graduate program).

It is important to note, however, that spousal support payments will not necessarily last for the rest of the recipient spouse’s lifetime. For instance, certain conditions or circumstances may affect the amount they receive. It can even terminate spousal support permanently if such payments are no longer needed. Lastly, if you need assistance with either terminating or receiving spousal support, you should contact a local family lawyer or divorce attorney immediately for further legal advice on the matter.

Can Spousal Support Be Terminated Early?

There are some circumstances in which a spouse may be able to end alimony payments early. Again, these conditions and requirements will depend on the laws of the state in which a petition to terminate spousal support is filed. This may include the following:
• If the recipient spouse has died;
• If the income of the recipient spouse has substantially increased to the point they have either become self-sufficient or make more than the spouse paying alimony;
• If the paying spouse would experience economic hardship due to continuing having to make payments at such an amount; If the recipient spouse remarries or moves-in with another person (note that this is subject to exceptions based on the laws of individual states);
• If the recipient spouse has intentionally avoided getting a job or becoming self-sufficient;
• If the recipient spouse hid assets, property, or other income to ensure they would receive spousal support payments from the other spouse; and/or

• If the spouse making alimony payments has retired due to one of the following reasons:
I. They are well beyond the age of retirement;
II. Their employer forced them to retire (e.g., involuntary retirement);
III. The length and amount they have paid to the recipient spouse before they retired;
IV. Their overall health status; and
V. Whether they intentionally retired to terminate alimony payments earlier than anticipated.

What Can a Spouse Do to Terminate Payments Early?

As previously mentioned, the steps and overall process to stop alimony payments early will depend on the circumstances surrounding a specific case and on the laws of a particular state. Generally speaking, however, the paying spouse will need to obtain approval from a court before they will be permitted to stop paying alimony. They can begin this process by filing a court form known as a “petition for termination of spousal support” with their local family law court.

The paying spouse will also need to provide supporting documentation along with their petition, including the following information:
• The reasons as to why they are filing a request to terminate alimony payments earlier than what was initially decided;
• A recent income statement that discloses how much they earn in a given period, the number of income sources they have, how much income they earn per each source, and where their main source of income comes from;
• A list that contains recurring expenses, reveals what those expenses are, and how much the expenses cost over a certain time frame; and
• Various other documents that indicate a change in circumstances that would warrant the court approving their petition.

Once the appropriate paperwork is filed and the court filing fees are paid, the interested parties must be served a copy of the documents that were filed. After the necessary legal procedures are complete, the court clerk will schedule a date for a court hearing regarding the petition.

At this hearing, the court will listen to arguments from both parties and examine any evidence that will help the judge to make a clear decision on whether or not alimony should be terminated earlier than expected. The judge will then issue a decision based on the parties’ arguments and supporting evidence. If the judge decides to approve the petition, the paying spouse will no longer be legally obligated to make spousal support payments to the receiving spouse.

On the other hand, if the court denies the petition, then the paying spouse must continue to pay alimony to the receiving spouse as if nothing has changed. The court may also decide to reduce, as opposed to completely deny, the amount of alimony that the paying spouse must send to the receiving spouse each month.

There are also some ways to avoid paying alimony altogether, such as if:
• The couple had a prenuptial or postnuptial agreement that precludes the other spouse from receiving alimony, or at the very least, reduces the amount they can receive each month;
• A spouse can prove they make less money than the other spouse or are in a worse financial situation that is beyond their control (e.g., terminal illness);
• The paying spouse can prove that the receiving spouse has gotten remarried (subject to exceptions); and/or
• In some states, the duration of the marriage may affect alimony payments. Thus, if the duration of the marriage was extremely short, then a spouse may be able to avoid having to pay any alimony to the other spouse.
Issues or disputes involving termination of alimony payments can become very complicated; especially, if the two spouses are unwilling to cooperate with one another. Thus, you may want to consider hiring a local family lawyer if you need assistance with terminating or preventing the termination of alimony payments.

An experienced family lawyer will be able to help you modify and prepare the necessary legal documents that are required to petition the court for a termination of alimony payments. Your lawyer can also advise you on the best course of action based on your personal circumstances and can explain what rights you have under the law.
In addition, your lawyer can offer guidance on the likelihood of succeeding on a petition to terminate alimony payments and can devise a new plan in advance should the court deny your petition. Alternatively, if you are the recipient spouse, your lawyer can assist you in building a convincing case not to terminate spousal support payments as well as can represent you on the matter in court.

There are several types of alimony, but each state’s alimony awards vary. Typically, needy spouses can request any of the following types of support:
• temporary support while the divorce is pending
• rehabilitative support to cover expenses until the recipient becomes self-supporting
• reimbursement support requires the paying spouse to pay back any money the recipient paid for that spouse’s education or work advancements, and
• permanent support, which the court reserves for cases where the recipient is unlikely to become financially independent.

Depending on your case’s circumstances, the judge may award periodic (monthly) payments, lump-sum payments, or payments through property exchange. The judge will explain the terms of alimony in your final divorce decree, including the end date. If your circumstances change before the ordered end date in your court order, you can request a formal review by the court. The legal requirements to modify alimony will depend on your state and your specific divorce decree. For example, if you agreed that your alimony award was non-modifiable, even a significant income change won’t be enough to allow the judge to change the order.

Remarriage and Alimony

Alimony usually ends if the receiving spouse remarries, unless there’s a written agreement or court order to the contrary. However, judges in some states have the discretion to continue alimony even after the spouse receiving it remarries unless your written settlement agreement specifies that payment will stop if one of you remarries.
Typically, the paying spouse’s marital status doesn’t affect alimony, even if it involves supporting additional children. In most cases, it makes sense for support to end if the supported spouse remarries and no longer needs financial assistance. But it’s not always that easy. If your final divorce order is silent on what should happen if the supported spouse remarries, state law will control. Each state has requirements for terminating or modifying alimony, so it’s important to check your alimony agreement and final court order and your state-specific laws before rushing to court after discovering that your spouse remarried.

Cohabitation

Every state’s legal definition of cohabitation varies. States that are silent on a definition agree that cohabitation exists when two people live in the same home in a marriage-like relationship, sharing expenses, without being legally married.

What Happens When a Supported Spouse Cohabitates with Someone New?

Although most states have clear rules terminating alimony when the supported spouse remarries, what happens if your ex-spouse is in a relationship but not married? The court may still terminate alimony, but it depends on where you live and your case’s specific circumstances.

Most states will reduce or terminate alimony if cohabitation significantly decreases the recipient’s need for support. For example, suppose you pay monthly alimony to your ex-husband, and he’s living with a new partner who is unemployed and broke. In that case, the court may not terminate your obligation to continue supporting your ex-spouse.

Other states will terminate alimony, regardless of whether the cohabitation impacts the recipient’s economic status. For example, in one Utah case, a husband asked the court to end support payments after discovering that his ex-wife was cohabitating with a new partner. The court evaluated several factors when determining whether the cohabitation resulted in a marriage-like relationship, including:
• the length of the relationship
• the amount of time the cohabitants spend together
• the nature of the activities the pair engaged in
• the interrelation of their personal affairs
• shared vacations, and
• their spending holidays together.

What Factors Do Courts Consider When Determining Permanent Alimony?

If you and your spouse can’t agree on permanent alimony as part of your divorce negotiations, you’ll probably end up in court, where a judge will decide both the amount and duration of long-term support. When looking at who should pay alimony, and in what amount, courts consider the extent to which each spouse’s earning capacity (potential to earn income) is sufficient to maintain the marital standard of living, taking into account a long list of factors including:
• the marketable skills of the supported spouse; the job market for those skills; the time and expense required for the supported spouse to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire more marketable skills or employment
• the extent to which the supported spouse’s earning capacity is impaired by periods of unemployment incurred during the marriage to permit the supported spouse to devote time to domestic duties
• the extent to which the supported spouse contributed to the paying spouse’s attainment of an education, training, career, or license
• the paying spouse’s ability to pay alimony (taking into account the paying spouse’s earning capacity, earned and unearned income, assets, and standard of living)
• both spouses’ financial needs based on the marital standard of living
• both spouses’ obligations (debts) and assets, including separate property
• the length of the marriage
• the supported spouse’s ability to work outside the home without excessively interfering with the interests of any dependent children in his or her custody, and
• the age and health of the spouses.

How Long Does Permanent Alimony Last?

The term “permanent” alimony is somewhat of a misnomer. Very few, if any, support awards will continue permanently. Generally, for short-term marriages (under ten years), permanent alimony lasts no longer than half the length of the marriage, with “marriage” defined as the time between the date of marriage and the date of separation. So, if your marriage lasted eight years, you may expect to pay or receive alimony for four years.

If your marriage was very short, permanent support may never become necessary. For example, if your marriage lasted only one year, you can expect to pay or receive alimony for six months; but this obligation may be met through temporary support payments. For marriages over ten years, there’s no hard-and-fast rule for figuring out how long alimony should last. Judges will consider various factors in order to place the supported spouse in a position as close as possible to the marital standard of living, until that spouse can reasonably become self-supporting.
After the divorce is final, alimony will continue as stated in your “marital settlement agreement” (a written agreement between spouses that resolves divorce issues) and/or court order awarding alimony, unless one spouse requests a modification or termination of support.

Can I Modify or Terminate Alimony?

Yes. Either spouse may request that the duration and/or amount of alimony be modified (changed), as long as the original order (or marital settlement agreement) awarding alimony doesn’t contain any language that makes alimony “non-modifiable.”

There are two ways to modify alimony. First, you and your spouse can agree to change the amount and/or duration of alimony. If this happens, you should enter into a written contract that spells out the new agreement, and ask the judge to turn the agreement into an official court order.

If you can’t agree, you’ll have to head to court. The person who wants to modify alimony must file a motion with the court and show a “material change of circumstances” from the time the original support order was made. The involuntary loss of a job, for example, may constitute a material change of circumstances. If the payor spouse’s income has decreased through no fault of his or her own, a judge may find that it’s appropriate to reduce support.
Similarly, you may be able to completely terminate your obligation to make alimony payments, as long as you can show a change of circumstances that warrants termination. However, if your order whether imposed by the court or arrived at by agreement between you and your spouse – was made “non-terminable,” then you won’t be able to terminate it prior to the date it’s set to end.

Finally, a support obligation will automatically terminate upon the death of the supported spouse. If the supported spouse dies before the alimony obligation ends, the payor spouse no longer has to pay, and the supported spouse’s estate can’t enforce the alimony order to its own benefit.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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What Types Of Spousal Support Am I Eligible For?

What Types Of Spousal Support Am I Eligible For?

Spousal support (also called alimony) falls into two broad categories: short-term support and long-term or permanent support. “Reimbursement” support is a kind of long-term support. A spouse may also get temporary support before the divorce is final.

How long one ex-spouse must help support the other is as much in the judge’s discretion as is the amount of support. Some judges start with the assumption that support should last half as long as the marriage did, and then work up or down from there by looking at certain factors. Most states don’t have guidelines for the duration of support, but some do—for example, in Utah, payments are limited to three years except in special circumstances. In Utah, support can’t last any longer than the marriage did. And in some states the marriage must have lasted at least ten years for a court to order support at all. How long support lasts depends on the nature of the support.

It’s possible that a former spouse might receive more than one kind of support at the same time. If a spouse is getting more than one kind of support, say rehabilitative and short-term, then when the spouse is employed again, the rehabilitative support would end. The short-term support would continue until its termination date.

Temporary Support While the Divorce Is Pending

You and your spouse don’t need to wait until everything in your divorce is settled to work out spousal support arrangements. In fact, the support issue may be most important immediately after you separate, to support the lower-earning spouse while your divorce is in process.

It’s always a good idea to make a written agreement about temporary support. (For one thing, payments are tax deductible only if there’s a signed agreement.) If you can’t agree on a temporary support amount, then you’ll probably spend some time in court arguing over it. If you have a right to support, it starts as soon as you separate, so get yourself to court right away.

Short-Term and Rehabilitative Support

Judges order short-term support when the marriage itself was quite short. Short-term support lasts only a few years, and its precise ending date is set in the court order. Rehabilitative support, sometimes also called “bridge the gap” support, is a specific kind of short-term support, designed to help a dependent spouse get retrained and back into the workforce. It lasts until the recipient is back to work. Generally, that date isn’t set in advance—the agreement is that the support payments will stop when the recipient completes a retraining program and becomes employed in the industry. The recipient is responsible for diligently pursuing the training or course of study and then searching for work. The other spouse is responsible for paying the support until that point and a payer who suspects the recipient isn’t really trying to complete an education or get work can ask the court to reduce the support amount or set a termination date. The person asking for the modification would have to prove that the other ex-spouse was not working hard enough.

Long-Term or Permanent Support

Permanent support may be granted after long marriages (generally, more than ten years), if the judge concludes that the dependent spouse most likely won’t go back into the workforce and will need support indefinitely. Some states don’t allow permanent support. It’s odd, but in fact even so-called permanent support does eventually end. Of course, it ends when either the recipient or the payor dies. It also may end when the recipient remarries. And in about half the states, it ends if the recipient begins living with another person in a marriage-like relationship where the couple provides mutual support and shares financial responsibilities.

Reimbursement Support

Reimbursement support is the only type of spousal support that’s not completely based on financial need. Instead, it’s a way to compensate a spouse who sacrificed education, training, or career advancement during the marriage by taking any old job that would support the family while the other spouse trained for a lucrative professional career. Generally both spouses expected that once the professional spouse was established and earning the anticipated higher salary, the sacrificing spouse would benefit from the higher standard of living and be free to pursue a desirable career. If the marriage ends before that spouse gets any of the expected benefits, reimbursement support rebalances the scales by making the professional spouse return some of what was given during the marriage. Because it’s not tied to need, reimbursement support ends whenever the agreement or court order says it does. Its termination generally isn’t tied to an event like the supported spouse getting work or remarrying.

Financially Disadvantaged Spousal Support

The bottom line is that there needs to have been one partner or spouse who was financially disadvantaged as a result of the marriage, and the other partner or spouse benefitted off of the other’s disadvantage. The simplest way to break this down is to look at what I am going to refer to as a “traditional” marriage where the husband works and the wife does the work at home to keep the house and family going. In this situation the wife is not making an income and is therefore disadvantaged, whereas the husband is able to take advantage of the wife’s childcare so that he is able to work himself. So essentially here the wife did not have the opportunity to work outside of the house because of the role she played in the marriage. On the other side of the spectrum is a couple who both worked and had similar incomes and neither lost a work opportunity. In that case it is very unlikely that spousal support will be paid.

Obviously every marriage and roles within that relationship is different but it is the give and take that we look at where one partner or spouse’s giving leaves them in a financially disadvantaged circumstance and the other benefits from the give, there may be a claim for spousal support to compensate for that disadvantage.

Needs Based Spousal Support

There is another type of spousal support that is based out of need, rather than compensation. The basic idea is that where one party is unable to meet their needs after a separation, it should be the former spouse that financially supports that party rather than the government. This type of spousal support is meant to balance financial disparities between the parties for a time after the separation.

When considering the question of spousal support we look at the “financial needs and circumstances”. The circumstances that are considered include the length of the marriage, so the longer the marriage the stronger a claim for spousal support. We look at the incomes of both partners, but it is important to remember that just because one partner make significantly more than the other does not mean an automatic claim for spousal support. The roles that each played within the marriage is looked at to see if there was a disadvantage and subsequent advantage of the other partner. Lastly, the ongoing childcare is also considered meaning that if one partner is going to continue caring for the children then they may be entitled to spousal support above the child support that they will already receive.

How Much and How Long?

Once the “if” entitlement to spousal support is determined, the next question is the “how” – how much and for how long. Spousal support is not necessarily forever. The partner who receives the support is required to work to become self-sufficient while receiving the support. Once the partner reaches self-sufficiency the spousal support stops. Each circumstance is different and so the amount of time that it takes to reach self-sufficiency is different. For instance, someone who is coming out of that traditional marriage may be nearing 60-years-old, and may not have had a job for the past 30 years, so may never find self-sufficiency, nor should they be required to at such a late time in life. Budgets of living in two separate homes will have to be made to help determine how much spousal support is needed. Spousal support is tax deductible by those who pay it and is taxable for those that receive it. So when looking at the amount of spousal support to be paid it is a good idea to take a look at the tax consequences, especially when the partner paying tax is in a higher tax bracket.

Provincial Guidelines

There are Guidelines for Spousal Support in Nova Scotia. These guidelines can computer generate a range to give you an idea of the how long and how much spousal support should be paid. But these are guidelines and not rules or laws like the child support tables. This means that they are not always used by every judge. They are just another tool that may help separating spouses.

Last Words

I hope that you can see with so many moving parts in the consideration of spousal support that independent legal advice is essential before coming to any agreement. I always would advise going to a collaboratively-trained lawyer because we have collaborative colleagues who are financial professionals specially trained with arranging finances for the transition into two homes. Making an agreement outside of court through kitchen-table conversation with independent legal advice, collaborative law or mediation are, in my humble opinion, the most successful because you are able to tailor the spousal support to each of your needs and incomes and possibly take advantage of the tax consequences of spousal support.

When Does One Spouse Need to Pay Alimony?

When both spouses work full time, many judges will not award alimony. However, when one spouse is a “dependent” spouse, a North Carolina court may award alimony. The spouse with no income or less income will receive alimony from the spouse who has a greater income. Many times, when one spouse decided to stay at home and raise children, judges will award that spouse alimony until he or she can complete the education or job training necessary to obtain gainful employment. There are many factors the court must consider when deciding whether to require alimony payments, including the following:
• The earning capacity of each spouse
• Any marital misconduct on behalf of either of the spouses
• The age of the spouses
• The emotional condition and mental state of each of the spouses
• The earned and unearned income of each spouse, including medical benefits, insurance benefits, Social Security eligibility, wages, and dividends
• The length of the marriage
• Each spouse’s education level at the time of the divorce
• The potential necessity of one or both spouses to receive more training or education to find gainful employment and meet all reasonable financial needs
• The relative debt, liabilities, and assets of each spouse
• Either spouse’s contribution as being a homemaker
• The needs of each spouse
• The separate property each spouse brought to the marriage
• The tax consequences of an alimony award
• Any other factor that is relevant to the financial circumstances of the spouses that the family court finds to be just and proper to consider
• Any contribution that one spouse made to the increase earning power, education, or job skills of the other spouse
• How one spouse’s earning power, financial obligations, and expenses will be negatively affected by that spouse having custody of the couple’s children

How is Alimony Calculated?

The amount and duration of alimony are based on multiple factors under Utah law.
When Utah courts examine the factors listed above, they have significant discretion. They may find one factor to be more pressing and important than the other factors. Or, they may determine that other factors are relevant to the couple’s financial circumstances. For example, if the spouses share a business together, or one spouse is part of a trust fund, they may consider those circumstances.

Utah judges also consider any so-called marital misconduct. Keep in mind that Utah judges have a wide range of discretion when it comes to determining when to award alimony and the amounts of the alimony payments. If you seek alimony, it is important that you have a dedicated attorney on your side who will represent your best interest.
What Constitutes Marital Misconduct?

As mentioned above, marital misconduct does come into a judge’s decision making process regarding alimony payments. Utah judges have the authority to decide not to award alimony to a spouse engaged in marital misconduct. Marital misconduct includes excessive drug or alcohol use, adultery, abandonment, or spending a significant amount of marital funds during the separation process.

What happens when one spouse has engaged in adultery?

Under Utah law, judges may require the spouse who will pay alimony to pay higher monthly payments when that spouse has committed adultery. Likewise, judges can require the spouse who committed adultery to pay alimony for a longer time. When the lower-income earner committed adultery before the separation, the judge could bar him or her from recovering alimony. When a higher-income spouse seeks to bar the lower-income spouse from receiving alimony due to adultery, the higher-earning spouse must not have committed adultery.

How Is Spousal Support Calculated?

Utah courts utilize a formula to determine the amount of temporary spousal support that the spouse requesting it will need. For permanent spousal support, however, the court will analyze the specific details of the case to determine the final spousal support amount.

Utah courts consider the following to calculate spousal support:
• The length of the marriage
• Each spouse’s needs as well as their standard of living during the marriage
• The age and health of each spouse
• Debts and assets of the spouses
• Whether one of the partners assisted the other with obtaining an education or professional training
• Whether there was domestic violence in the marriage
• What the tax impact of spousal support will be
The Importance of Earning Capacity & Standard of Living

A judge will closely examine how much income each spouse can earn based on their current education, professional training, and skill set to keep the same standard of living they had during the marriage. Based on this, the judge will analyze how marketable the spouse is and what job opportunities are available for them. The judge will also determine the time and expense it will take for the spouse to get a job.

Length in Marriage

The length that a person has to pay for spousal support is heavily based on the length of the marriage. In most cases, the time period ordered to pay spousal support will be one-half length of the marriage. However, if the marriage was longer than 10- years, the court might not set an end date to the spousal support.

How to Create a Spousal Support Agreement

It is possible for spouses to work together to create a spousal support agreement. In order to create a spousal support agreement, the couple must create and sign a written agreement or stipulation without having to go in front of a judge. This is beneficial for spouses who don’t want a judge to decide for them and want to work on the agreement together. However, the court will have to accept and sign your agreement for it to be official.
To create a spousal support agreement, follow these steps:
1. Decide on the amount and duration of the spousal support
2. Write up your agreement.
3. Sign your agreement
4. Turn in your agreement to the court for the judge to sign
5. File your agreement/stipulation after the judge signs it

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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What Types Of Spousal Support Am I Eligible For?

Spousal support (also called alimony) falls into two broad categories: short-term support and long-term or permanent support. “Reimbursement” support is a kind of long-term support. A spouse may also get temporary support before the divorce is final.

How long one ex-spouse must help support the other is as much in the judge’s discretion as is the amount of support. Some judges start with the assumption that support should last half as long as the marriage did, and then work up or down from there by looking at certain factors. Most states don’t have guidelines for the duration of support, but some do—for example, in Utah, payments are limited to three years except in special circumstances. In Utah, support can’t last any longer than the marriage did. And in some states the marriage must have lasted at least ten years for a court to order support at all. How long support lasts depends on the nature of the support.

It’s possible that a former spouse might receive more than one kind of support at the same time. If a spouse is getting more than one kind of support, say rehabilitative and short-term, then when the spouse is employed again, the rehabilitative support would end. The short-term support would continue until its termination date.

Temporary Support While the Divorce Is Pending

You and your spouse don’t need to wait until everything in your divorce is settled to work out spousal support arrangements. In fact, the support issue may be most important immediately after you separate, to support the lower-earning spouse while your divorce is in process.

It’s always a good idea to make a written agreement about temporary support. (For one thing, payments are tax deductible only if there’s a signed agreement.) If you can’t agree on a temporary support amount, then you’ll probably spend some time in court arguing over it. If you have a right to support, it starts as soon as you separate, so get yourself to court right away.

Short-Term and Rehabilitative Support

Judges order short-term support when the marriage itself was quite short. Short-term support lasts only a few years, and its precise ending date is set in the court order. Rehabilitative support, sometimes also called “bridge the gap” support, is a specific kind of short-term support, designed to help a dependent spouse get retrained and back into the workforce. It lasts until the recipient is back to work. Generally, that date isn’t set in advance—the agreement is that the support payments will stop when the recipient completes a retraining program and becomes employed in the industry. The recipient is responsible for diligently pursuing the training or course of study and then searching for work. The other spouse is responsible for paying the support until that point and a payer who suspects the recipient isn’t really trying to complete an education or get work can ask the court to reduce the support amount or set a termination date. The person asking for the modification would have to prove that the other ex-spouse was not working hard enough.

Long-Term or Permanent Support

Permanent support may be granted after long marriages (generally, more than ten years), if the judge concludes that the dependent spouse most likely won’t go back into the workforce and will need support indefinitely. Some states don’t allow permanent support. It’s odd, but in fact even so-called permanent support does eventually end. Of course, it ends when either the recipient or the payor dies. It also may end when the recipient remarries. And in about half the states, it ends if the recipient begins living with another person in a marriage-like relationship where the couple provides mutual support and shares financial responsibilities.

Reimbursement Support

Reimbursement support is the only type of spousal support that’s not completely based on financial need. Instead, it’s a way to compensate a spouse who sacrificed education, training, or career advancement during the marriage by taking any old job that would support the family while the other spouse trained for a lucrative professional career. Generally both spouses expected that once the professional spouse was established and earning the anticipated higher salary, the sacrificing spouse would benefit from the higher standard of living and be free to pursue a desirable career. If the marriage ends before that spouse gets any of the expected benefits, reimbursement support rebalances the scales by making the professional spouse return some of what was given during the marriage. Because it’s not tied to need, reimbursement support ends whenever the agreement or court order says it does. Its termination generally isn’t tied to an event like the supported spouse getting work or remarrying.

Financially Disadvantaged Spousal Support

The bottom line is that there needs to have been one partner or spouse who was financially disadvantaged as a result of the marriage, and the other partner or spouse benefitted off of the other’s disadvantage. The simplest way to break this down is to look at what I am going to refer to as a “traditional” marriage where the husband works and the wife does the work at home to keep the house and family going. In this situation the wife is not making an income and is therefore disadvantaged, whereas the husband is able to take advantage of the wife’s childcare so that he is able to work himself. So essentially here the wife did not have the opportunity to work outside of the house because of the role she played in the marriage. On the other side of the spectrum is a couple who both worked and had similar incomes and neither lost a work opportunity. In that case it is very unlikely that spousal support will be paid.

Obviously every marriage and roles within that relationship is different but it is the give and take that we look at where one partner or spouse’s giving leaves them in a financially disadvantaged circumstance and the other benefits from the give, there may be a claim for spousal support to compensate for that disadvantage.

Needs Based Spousal Support

There is another type of spousal support that is based out of need, rather than compensation. The basic idea is that where one party is unable to meet their needs after a separation, it should be the former spouse that financially supports that party rather than the government. This type of spousal support is meant to balance financial disparities between the parties for a time after the separation.

When considering the question of spousal support we look at the “financial needs and circumstances”. The circumstances that are considered include the length of the marriage, so the longer the marriage the stronger a claim for spousal support. We look at the incomes of both partners, but it is important to remember that just because one partner make significantly more than the other does not mean an automatic claim for spousal support. The roles that each played within the marriage is looked at to see if there was a disadvantage and subsequent advantage of the other partner. Lastly, the ongoing childcare is also considered meaning that if one partner is going to continue caring for the children then they may be entitled to spousal support above the child support that they will already receive.

How Much and How Long?

Once the “if” entitlement to spousal support is determined, the next question is the “how” – how much and for how long. Spousal support is not necessarily forever. The partner who receives the support is required to work to become self-sufficient while receiving the support. Once the partner reaches self-sufficiency the spousal support stops. Each circumstance is different and so the amount of time that it takes to reach self-sufficiency is different. For instance, someone who is coming out of that traditional marriage may be nearing 60-years-old, and may not have had a job for the past 30 years, so may never find self-sufficiency, nor should they be required to at such a late time in life. Budgets of living in two separate homes will have to be made to help determine how much spousal support is needed. Spousal support is tax deductible by those who pay it and is taxable for those that receive it. So when looking at the amount of spousal support to be paid it is a good idea to take a look at the tax consequences, especially when the partner paying tax is in a higher tax bracket.

Provincial Guidelines

There are Guidelines for Spousal Support in Nova Scotia. These guidelines can computer generate a range to give you an idea of the how long and how much spousal support should be paid. But these are guidelines and not rules or laws like the child support tables. This means that they are not always used by every judge. They are just another tool that may help separating spouses.

Last Words

I hope that you can see with so many moving parts in the consideration of spousal support that independent legal advice is essential before coming to any agreement. I always would advise going to a collaboratively-trained lawyer because we have collaborative colleagues who are financial professionals specially trained with arranging finances for the transition into two homes. Making an agreement outside of court through kitchen-table conversation with independent legal advice, collaborative law or mediation are, in my humble opinion, the most successful because you are able to tailor the spousal support to each of your needs and incomes and possibly take advantage of the tax consequences of spousal support.

When Does One Spouse Need to Pay Alimony?

When both spouses work full time, many judges will not award alimony. However, when one spouse is a “dependent” spouse, a North Carolina court may award alimony. The spouse with no income or less income will receive alimony from the spouse who has a greater income. Many times, when one spouse decided to stay at home and raise children, judges will award that spouse alimony until he or she can complete the education or job training necessary to obtain gainful employment. There are many factors the court must consider when deciding whether to require alimony payments, including the following:
• The earning capacity of each spouse
• Any marital misconduct on behalf of either of the spouses
• The age of the spouses
• The emotional condition and mental state of each of the spouses
• The earned and unearned income of each spouse, including medical benefits, insurance benefits, Social Security eligibility, wages, and dividends
• The length of the marriage
• Each spouse’s education level at the time of the divorce
• The potential necessity of one or both spouses to receive more training or education to find gainful employment and meet all reasonable financial needs
• The relative debt, liabilities, and assets of each spouse
• Either spouse’s contribution as being a homemaker
• The needs of each spouse
• The separate property each spouse brought to the marriage
• The tax consequences of an alimony award
• Any other factor that is relevant to the financial circumstances of the spouses that the family court finds to be just and proper to consider
• Any contribution that one spouse made to the increase earning power, education, or job skills of the other spouse
• How one spouse’s earning power, financial obligations, and expenses will be negatively affected by that spouse having custody of the couple’s children

How is Alimony Calculated?

The amount and duration of alimony are based on multiple factors under Utah law.
When Utah courts examine the factors listed above, they have significant discretion. They may find one factor to be more pressing and important than the other factors. Or, they may determine that other factors are relevant to the couple’s financial circumstances. For example, if the spouses share a business together, or one spouse is part of a trust fund, they may consider those circumstances.

Utah judges also consider any so-called marital misconduct. Keep in mind that Utah judges have a wide range of discretion when it comes to determining when to award alimony and the amounts of the alimony payments. If you seek alimony, it is important that you have a dedicated attorney on your side who will represent your best interest.

What Constitutes Marital Misconduct?

As mentioned above, marital misconduct does come into a judge’s decision making process regarding alimony payments. Utah judges have the authority to decide not to award alimony to a spouse engaged in marital misconduct. Marital misconduct includes excessive drug or alcohol use, adultery, abandonment, or spending a significant amount of marital funds during the separation process.

What happens when one spouse has engaged in adultery?

Under Utah law, judges may require the spouse who will pay alimony to pay higher monthly payments when that spouse has committed adultery. Likewise, judges can require the spouse who committed adultery to pay alimony for a longer time. When the lower-income earner committed adultery before the separation, the judge could bar him or her from recovering alimony. When a higher-income spouse seeks to bar the lower-income spouse from receiving alimony due to adultery, the higher-earning spouse must not have committed adultery.

How Is Spousal Support Calculated?

Utah courts utilize a formula to determine the amount of temporary spousal support that the spouse requesting it will need. For permanent spousal support, however, the court will analyze the specific details of the case to determine the final spousal support amount.

Utah courts consider the following to calculate spousal support:
• The length of the marriage
• Each spouse’s needs as well as their standard of living during the marriage
• The age and health of each spouse
• Debts and assets of the spouses
• Whether one of the partners assisted the other with obtaining an education or professional training
• Whether there was domestic violence in the marriage
• What the tax impact of spousal support will be

The Importance of Earning Capacity & Standard of Living

A judge will closely examine how much income each spouse can earn based on their current education, professional training, and skill set to keep the same standard of living they had during the marriage. Based on this, the judge will analyze how marketable the spouse is and what job opportunities are available for them. The judge will also determine the time and expense it will take for the spouse to get a job.

Length in Marriage

The length that a person has to pay for spousal support is heavily based on the length of the marriage. In most cases, the time period ordered to pay spousal support will be one-half length of the marriage. However, if the marriage was longer than 10- years, the court might not set an end date to the spousal support.

How to Create a Spousal Support Agreement

It is possible for spouses to work together to create a spousal support agreement. In order to create a spousal support agreement, the couple must create and sign a written agreement or stipulation without having to go in front of a judge. This is beneficial for spouses who don’t want a judge to decide for them and want to work on the agreement together. However, the court will have to accept and sign your agreement for it to be official.
To create a spousal support agreement, follow these steps:
1. Decide on the amount and duration of the spousal support
2. Write up your agreement.
3. Sign your agreement
4. Turn in your agreement to the court for the judge to sign
5. File your agreement/stipulation after the judge signs it

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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Filing for Divorce

Divorce begins when a divorce petition, or complaint, is filed. The divorce petition is a formal complaint, typically put together by one spouse with the help of a divorce lawyer. It’s filed with the divorce court and then served on the other spouse. The divorce petition usually must be filed in the county of residence of the person filing for divorce regardless of where the couple was married. The spouse who files the divorce petition is known thereafter as the petitioner, and the other spouse as the respondent. These roles don’t change, even if the respondent later files a petition against the original petitioner to resolve an issue related to the marriage.

Divorce Paperwork

The divorce petition asks the divorce court to grant a divorce or dissolution based on a particular reason. In no-fault divorce, the reason stated is often “irreconcilable differences.” The divorce petition must also identify the spouses, any children and the issues of the divorce. The petitioner states in the divorce petition his or her wishes regarding child custody, child support, alimony, property division and other marital issues, asking the court for an order granting the requests.

What Papers Do You Need to Get a Divorce?

A divorce case begins when you file a petition for divorce and deliver it to your spouse. You’ll also typically file a financial affidavit that describes your income, expenses, and property. Other common documents include a settlement agreement and a parenting plan.

Here’s an overview of these basic divorce papers and where to get them.

Different states have different divorce forms and different laws. However, some documents are common across the board.

1. Dissolution of Marriage Petition
To start a divorce, file a document known as a “petition” with your local court and pay a filing fee. A divorce petition includes basic information, like the names of the parties, the county you live in, when you were married, and your grounds for divorce. If you can’t afford the filing fee, you may be able to get it waived.
Unless you and your spouse file for divorce jointly, you’ll also need a summons. A summons notifies your spouse (the “defendant”) that you’ve filed for divorce, and it gives the defendant a deadline for filing a formal response. The summons and petition must be delivered to, or “served on,” the defendant. In some states, someone other than you must hand deliver them. In other states, they can be mailed.

2. Settlement Agreement
You may have a contested or uncontested divorce. In an uncontested divorce, you and your spouse agree on all the issues you need to deal with before your divorce can be final. This includes whether to get divorced at all, alimony, child support, child custody, and dividing your property and debts.

In a contested divorce, you disagree about one or more issues. Most couples with contested divorces do eventually reach an agreement, either on their own or with the help of a lawyer or mediator.

Your written agreement about support, custody, and property is known as a settlement agreement. You’ll each sign it, and you’ll file it with the court as part of your divorce case. When your divorce is final, the settlement agreement will be part of the court’s order.

3. Financial Affidavit
A financial affidavit is a sworn document that lists your income, expenses, debts, money, and property. You and your spouse must each file one in almost all divorce cases. A judge uses the information in a financial affidavit to set child and spousal support, award attorneys’ fees, and if necessary divide up property.

It can be hard to find specific advice on how to fill out a financial affidavit. A good rule is to take your time and be as accurate as possible. You may have to defend your affidavit’s numbers in a deposition or in court. You may want help from a friend, an accountant, or a lawyer.

4. Parenting Plan
If you have children, a parenting plan is your guide for handling major decisions as well as everyday life after your divorce. A parenting plan describes when the children will be with each parent. It says who will pay for things like music lessons and college tuition. It covers vacations, medical emergencies, and decisions about education and religion.

Although parenting plans typically follow a standard format, parenting responsibilities may be shared in many ways. Ideally, you and your ex will agree on a plan that makes sense for your family. The parenting plan will be included in the final divorce decree.

Where Can I Get Divorce Forms?

Your county court clerk’s office or website can tell you how to get divorce forms for your state. These forms may include general instructions for how to fill them out. You can also find the appropriate online divorce papers by using a tool that asks questions and prepares your forms for you. Divorce works a little differently in each state. Now that you have some basic information about divorce documents, you can find out what exactly you need to do to end your marriage in the state where you live.

Service of the Petition

Oftentimes, a third party, such as the sheriff’s office, accomplishes legal service of the petition, or complaint. Process service may be handled by the local sheriff’s office or served by an independent process server. If both parties agree, in some cases service of the divorce petition may be handled by mail, if the respondent signs a receipt acknowledging service. Once the divorce petition has been served, the respondent usually has about 30 days to answer the divorce petition. Service of the divorce petition helps establish the date of separation and starts the divorce process. The date the divorce petition was served also marks the start of any waiting periods that may be a requirement for divorce.

Filing an Answer or Appearance

The respondent, or defendant, generally has 30 days to answer or file a response. A failure to respond within the time allowed means that the party is considered in default and may forfeit his or her rights to contest issues such as child custody or property division. When a respondent fails to file a response, the divorce court assumes he or she is in agreement with the divorce petition and grants the petitioner’s requests.

Moving Forward with the Answer

An answer, which is called a response, acknowledges the filing and receipt of the petition, or complaint. In it, the respondent replies to any allegations or requests by the petitioner. The response may be in agreement or in objection to the petitioner’s requests. The answer may also agree with some parts of the divorce petition and disagree with others. If the couple agrees on all issues, the respondent may simply file an answer indicating agreement, which allows the petitioner to go forward with an uncontested divorce. The respondent may want to consult with a lawyer about the response.

An Effective Answer

In the answer, the respondent, or defendant, should clearly agree or disagree with the position on each divorce issue and provide an explanation if necessary. The respondent may also make demands in the answer to the divorce petition. In some states, forms may be provided to simplify answering a divorce petition. These forms often contain a list of issues, so the respondent may check off whether he or she agrees or disagrees with each issue.

Discovery

In contested divorces, discovery becomes the heart of the action. Discovery permits the spouses to gather detailed information from each other about assets, income, and fitness for child custody, extramarital affairs and any other issue relevant to the divorce. Discovery is normally very expensive because it consumes hours and hours of an attorney’s time. The spouses exchange relevant information as required by the rules of procedure. If a spouse resists turning over relevant information, he or she can be compelled by court order.

Cooling Off

After the divorce petition and answer are filed, some jurisdictions require a waiting period so that the parties may cool off and make certain they want to end their marriage. Divorce waiting periods vary from state to state. In the past, states have considered extending divorce waiting periods, especially for couples with children. Such divorce legislation has been based on observations that shorter divorce waiting periods lead to higher divorce rates.

Divorce Settlement

Courts normally push divorcing spouses to settlement because litigation between spouses antagonizes the parties, harms the children and drives up costs. Couples who can get along well enough to hammer out an agreement find that this approach can dramatically speed up the divorce, minimize the stress on the children, and cuts costs. The decision to settle is always up to the spouses not their lawyers.

Divorce Trial

When divorcing spouses cannot reach an agreement, the court schedules a trial. In a trial, the spouses get to tell their stories, call witnesses, and cross-examine the other spouse’s witnesses. A judge – who has heard it all before, as they say – makes a final decision. After the trial, a final divorce decree is entered resolving all of the issues in the divorce. A losing party can appeal the divorce decree.

Litigation a Course of Last Resort

A divorce trial should be a course of last resort because it is here spouses make war on one another, and when it is over, they will leave the battlefield with lasting hatred of one another.

State Divorce Law

Divorce in the United States is governed by state-specific laws. Normally, divorcing couples file for divorce in the county of the residence. They need not file in the state where they were married. All states honor the marriages and divorces of sister states.

Residency Requirements to File

Normally, a person must be a resident of the state where the divorce is filed. State residency requirements range from 90 days to one year.

Two Types of Divorce

Courts in the United States recognize two types of divorces: absolute divorce, known as divorce a vinculo matrimonii (divorce from the bond of marriage) and limited divorce, known as divorce a menso et thoro (a divorce from table and bed). A divorce a vinculo matrimonii is an absolute divorce, the judicial termination of a marriage that makes both spouses single. A divorce a menso et thoro is a limited divorce typically called a legal separation.

Filing for a Conversion Divorce

Limited divorces result in termination of the right to cohabit but the court refrains from officially dissolving the marriage and the parties’ statuses remain unchanged. The spouses are still married. Some states permit conversion divorce. Conversion divorce transforms a legal separation into a legal divorce after both parties have been separated for a period of time defined by state statute.

Divorce Laws

State law determines whether a state divides and distributes the martial estate under the terms and conditions of equitable distribution or as community property. State law also determines whether property is either marital or separate or whether all property is subject to distribution. Nine states are said to be community property states, which means that the entire marital estate is subject to distribution; 41 are said to be equitable distribution, which means that the marital estate is distributed equitably.

Uncontested Divorce

A divorce proceeding in which there are no disputes does not mean that the parties agree on everything. It means that the spouses have decided to work out their differences themselves rather than have a judge do it for them.

When an Uncontested Action Works

Uncontested actions work well when the parties behave rationally and control their own worst impulses, including greed, revenge and selfishness. Remember, as one veteran lawyer said, “Criminal lawyers see bad people at their best, and divorce lawyers see good people at their worst.”

The Advantages of Uncontested Actions

Not only does an uncontested divorce move through the system more quickly, it is much less complicated, does less emotional damage, and costs less than a contested action that goes before a judge who decides for the spouses what they cannot decide for themselves.

Disadvantages of Uncontested Actions

An uncontested divorce does not work in high-conflict marriages where there is domestic violence. An uncontested divorce works best when both parties can openly communicate with each other.

Cost of an Uncontested Action

Uncontested divorces can cost anywhere from a few hundred dollars to $1,200. The fee may depend on how much time the attorney will have to devote to the case. If there are unresolved issues that must be worked out, the cost could increase.

Pro Se Divorce

An uncontested divorce lends itself to a pro se action, which is a divorce in which each spouse represents himself or herself in court without a lawyer. Pro se divorces work easily to terminate a short-term marriage that is childless, with both spouses working, easily distributed assets and easily settled debts.

One Lawyer – One Client

No matter how agreeable the spouses are, each party must have his or her own lawyer. Legal ethics require that a single lawyer cannot represent both parties. The lawyer must represent one or the other spouse, and he or she needs to know this at the outset.

Forms of Uncontested Actions

An uncontested action can happen summarily, by default (where one spouse files and the other does not respond), through mediation (where the couple use a trained mediator), or by collaboration (where the couple actively cooperate with each other and lawyers are negotiators). The case can move on, and the time between filing and the judgment of divorce varies by jurisdiction from a few weeks to a few months.

Pro Se Filing

Pro se divorce litigation means that the petitioner, or plaintiff, represents himself or herself in a divorce without an attorney. The procedures are the same for a pro se litigator except that he or she is responsible for filling out and filing all the legal forms. People file pro se because they can’t afford to hire an attorney, or they agree with their spouse about all divorce issues and can file uncontested, or they become dissatisfied with their attorneys and feel they could do a better job on their own.

Off to the Law Library

Anyone who wants to do his or her own divorce should make a stop at the law library. Divorce law is state specific, and practices vary from jurisdiction to jurisdiction. In a divorce, the only dumb question is the one that went unasked.

Keeping Emotions in Check

Anyone who cannot separate the emotional strum und drang of divorce from the cool legalism of it should not attempt to do his or her own divorce. Pro se divorce is not for settling the score.

Pro Se is Less Costly

Without a doubt, one of the biggest draws about filing pro se is cost. A simple uncontested divorce with legal representation costs $1,500 to $2,000. By comparison, a pro se divorce can be had for under $300, plus court costs and filing fees.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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What Is The Difference Between Fault And No Fault Divorce?

What Is The Difference Between Fault And No Fault Divorce?

The concepts of a fault and no-fault divorce are state-specific and country-specific. If you aren’t sure of the laws in your jurisdiction, your best course of action is to first speak with an experienced divorce lawyer who can review the laws of your state, how they apply to you, and the best legal options going forward. When a spouse petitions for divorce, he or she usually has two options. He or she can either ask for a divorce based on no-fault grounds or he or she can file based on fault-grounds. The option he or she chooses depends on the state laws where he or she lives and the particular circumstances of the case.

The difference between fault and no-fault divorce can be substantial and which one applies to you depends on where you live. This article examines the differences and the grounds that are accepted to prove who was at fault for a divorce.

No-Fault Divorce

A no-fault divorce refers to a type of divorce in which the spouse who is filing for divorce doesn’t have to prove any fault on the part of the other spouse. All states recognize no-fault divorce, but as of 2021, only 19 states are “true” no-fault divorce states. The only option you have for filing is no-fault. The reason given by parties seeking a no-fault divorce is “irreconcilable differences” or an “irreparable breakdown of the marriage.” The spouse receiving the divorce petition cannot object to the other party’s petition for a no-fault divorce. That objection itself can be viewed by the court as an irreconcilable difference. Usually, these states require that the spouses live separately for a designated period of time before either party can file for divorce.

Fault Divorce

Fault divorces are not as common. When a spouse requests a divorce based on some fault of the other spouse, the “matrimonial offenses” that are commonly given as grounds for divorce are:

Cruel and Inhuman Treatment

This term is defined under state law. However, it usually requires more than simple misconduct or incompatibility. Instead, the conduct must usually be to such an extreme that continued cohabitation threatens the other spouse’s physical or mental health. Ongoing physical or emotional abuse may be proof of this ground.

Adultery

Adultery is a common fault-based ground for divorce. However, state law may vary on what is considered adultery. For example, some states specify that adultery involves the physical act of sexual intercourse in order to qualify as such. Adultery is often proven with circumstantial evidence, such as showing that a spouse and a third party were romantically attached and had the opportunity to commit adultery. Judges must often decide whether or not adultery has occurred by the totality of the circumstances. There are specific defenses to adultery, such as being guilty of the same conduct or forgiving the conduct and resuming sexual relations with the adulterous spouse.
Incarceration

The state statute may allow for fault-based divorce if a spouse is incarcerated for a specific amount of time, such as over one year.

Insanity

If a spouse is confined for mental illness for a certain period of time in accordance with state law, this may be grounds for divorce.

Abandonment

Another fault-based ground that may be recognized by the state is abandonment or desertion. The statute regarding this ground usually specifies the amount of time that has lapsed since the spouse abandoned the other, usually for a year or more.

Abandonment occurs when one spouse voluntarily leaves the other with the intent to desert him or her. The clock on the required timeframe begins once the spouse has abandoned the other. Reconciling and then parting ways again may or may not defeat this ground, depending on state law.

Substance Abuse

Some states allow for fault grounds based on habitual drunkenness or drug addiction.

Impotence

If one or both partners are not able to perform sexually, the state may allow this reason for divorce.

Benefit of Proving Fault

In some states, proving fault can impact the financial outcome of a divorce. For example, if a judge finds that a spouse commit adultery and used marital assets to supplement a lover’s lifestyle, he or she may consider this fact when determining how to distribute property or how much alimony to award. In some states, a spouse is ineligible for alimony if he or she committed adultery or was proven to be abusive in the relationship.

When you file for divorce, you’ll have to indicate on your divorce petition the reason why your marriage is ending—the “grounds” for the divorce. In some states, divorcing spouses have the option of filing either a “fault-based” or “no-fault” divorce. Other states allow only no-fault divorce. A key difference between fault and no-fault divorce is that spouses filing a fault divorce are typically not required to live apart for a specific period of time before filing.

In some states that recognize fault divorce, establishing fault can result in a larger distribution of the marital property or granting of alimony to the spouse that was not at fault. In other states that require or allow fault divorce, fault is not a factor in the property settlement decision at all.

These two characteristics make a fault divorce more attractive to some people.

Fault Divorce: Comparative Rectitude

When both spouses seek a fault divorce and can both prove the other spouse was at fault, the court decides which one is least at fault. That party will be granted the divorce. This is called “comparative rectitude.” This doctrine was created to address the problem of courts granting neither party a divorce if they were both at fault. Courts have a policy of not forcing people to stay married if they don’t want to be.

Fault Divorce: Defenses

Unlike a no-fault divorce, a spouse can object to a fault divorce. They must disprove the fault by presenting a defense. These are common fault divorce defenses:

Connivance is an absolute defense to adultery. Connivance alleges that the complaining spouse agreed to and even participated in the adultery or created the opportunity by enticing someone to seduce their spouse.

Condonation is a claim that the other spouse knew about the problematic conduct, forgave that conduct, and resumed the marital relationship. This is typically used to defend against an adultery accusation.

Recrimination is when the complaining spouse is equally at fault or engaged in similar conduct. For example, if both spouses had affairs, neither one would be able to use adultery as grounds for a fault divorce.

Provocation is when one spouse provoked the other spouse to act in a certain way. For example, where one spouse abuses the other spouse, that may have forced that spouse to leave the marital home. The abusive spouse would not be able to use abandonment as grounds for divorce, since it was his or her abuse that caused the other spouse to leave.
Collusion refers to an agreement between the spouses to fabricate a grounds for divorce. If one of the spouses changes his or her mind, collusion could be raised to lessen the original grounds for the fault divorce.

Proving any of these defenses can be costly and time-consuming. It often involves the use of witnesses. Furthermore, courts have a policy of granting divorces to people who ask for them, despite defenses given by the other spouse.

These reasons typically deter people from attempting defenses.

Fault and No-Fault Divorce: Residency Requirements

Most states have a residency requirement that determines who is eligible to file for divorce in that state. Usually, at least one of the spouses must have been a resident of a state for six months to one year in order to file for divorce there. Washington, South Dakota, and Alaska have no required length of time. To file in one of those states, you merely need to be a resident of that state at the time you are filing.

It’s in your best interest to file for divorce in the state where you live. The court that orders the divorce decree is the court that has jurisdiction for all future changes to court orders.

For example, you and your spouse receive a divorce in Utah. Three years later you want to move to Utah for a job opportunity. You want to revise your child custody arrangement. You will need to take your child custody case to the Utah court that granted the initial divorce because that court has exclusive, continuing jurisdiction over the divorce and child custody order. (If you are given permission to move your child to a new state, jurisdiction may be transferred to that state.)

Validity of Divorces across States

Courts of all states honor the decisions made by courts in other states because the Full Faith and Credit Clause of the U.S. Constitution requires it. Therefore, going back to the preceding example, if your spouse files in Utah, this divorce and all of the court orders related to it, apply to you in your Missouri home.

The validity of a state court’s decision comes into question when one of the spouses is not a resident of the state at the time of the divorce proceeding. The court may not have personal jurisdiction over the nonresident spouse. A lack of personal jurisdiction means that although the divorce decree may be valid, other related decisions, such as child custody, support, and property division, may be invalid.

If you receive papers from a foreign country, there are many jurisdictional issues, such as what country is involved, where the spouses live or have lived, and where the children (if any) live.

The reasons why spouses choose fault-based divorce vary. Some people don’t want to wait out the period of separation required by their state’s law for a no-fault divorce. And, in some states, a spouse who proves the other’s fault might receive a greater share of the marital property or more alimony. For many, though, the choice might be prompted by hurt feelings. No matter what the reason for choosing a fault-based divorce, though, these divorces tend to be more expensive, as many spouses choose to hire a lawyer to help them present their evidence and convince the judge of their arguments.

Do I Have to Live in a State to Get a Divorce There?

All states have a residency requirement that one or both spouses must meet to be eligible to file for a divorce. Often, states require the filing spouse to be a state resident for at least three months or even as long as a year. The filing spouse must provide proof of residence for the required length of time. Only a few states have no time requirement for resident status (being a resident at the time you file is enough). If you think that your spouse might file for divorce in another state, consider trying to be the first to file—in your own state. Rarely is a divorce settled in one court appearance, and if your spouse files elsewhere, you could rack up a lot of traveling expenses. Also, after the divorce is over, you must file any modifications to the divorce decree, including the property settlement agreement and arrangements for child custody and support, in the state that heard your divorce, which could require you to travel out of state for years to come.

Can a Court Enforce an Out-of-State Divorce?

If one spouse meets the residency requirement of a state or country (such as having lived there from six months to a year), a divorce obtained there is valid, even if the other spouse lives somewhere else. The courts of all states will recognize the divorce.

However, a court’s decisions regarding property division, alimony, custody, and child support might not be valid unless the court had jurisdiction over (the legal power to make decisions about) the nonresident spouse. The nonresident spouse falls under the court’s jurisdiction when:
• The filing spouse personally serves the nonresident spouse with the divorce documents (meaning you deliver them into the person’s hands)
• The nonresident spouse consents to jurisdiction (by either showing up at a court hearing or signing an affidavit of service acknowledging receipt of court documents), or
• The nonresident spouse obeys the rulings of the out-of-state court (for example, by paying court-ordered child support).
If you receive divorce documents from a foreign country, you might want to consult an attorney about whether your state court or the foreign court governs the issues. Whether a foreign court has the power to decide issues in your divorce depends on many factors, such as which particular country heard the case, where the parties lived and for how long, and whether children are involved.

Which should you choose: fault or no-fault divorce?

In Utah nowadays, almost all divorcing spouses file on grounds of incompatibility. There are very few fault divorces granted in Utah anymore. This is because the process of fault divorce and no-fault divorce is largely the same. So, usually, there is no advantage in filing for a fault divorce.

In the few fault divorces I have seen, it seemed that the filing spouse was asserting fault grounds just so she could get embarrassing gossip into the public record. This type of legal drafting is spiteful and petty. I would never advise a client to file a divorce petition in this manner.

Nevertheless, there are a few minor advantages you may gain by filing a fault divorce.

For example, in most divorces with minor children, you have to wait ninety days after filing the petition before your divorce can be finalized. However, the ninety-day waiting period does not apply if you file for divorce for any of the following grounds:
1. Abandonment for one (1) year;
2. Extreme cruelty;
3. Habitual drunkenness;
4. Imprisonment of the other party in a state or federal penal institution under sentence thereto for the commission of a felony at the time the petition is filed;
5. The procurement of a final divorce decree outside this state by a husband or wife which does not in this state release the other party from the obligations of the marriage;
6. Insanity for a period of five (5) years, the insane person having been an inmate of a state institution for the insane in the State of Utah, or an inmate of a state institution for the insane in some other state for such period, or an inmate of a private sanitarium, and affected with a type of insanity with a poor prognosis for recovery;
7. Conviction of any crime defined by the Utah Child Abuse Reporting and Prevention Act committed upon a child of either party to the divorce by either party to the divorce; or
8. A child of either party has been adjudicated deprived, pursuant to the Utah Children’s Code, as a result of the actions of either party to the divorce and the party has not successfully completed the service and treatment plan required by the court.

If you file for divorce on any of these grounds, your waiting period is thirty days. These fault grounds don’t matter if there aren’t children of the marriage. If there are no children, your waiting period is ten days, regardless of whether you file on fault grounds or not.

In any divorce case, you may finalize your divorce in less time than the waiting period if there is an emergency. This is true whether you file on fault grounds or no-fault grounds.

Another difference between fault and no-fault divorce in Utah is that in a no-fault divorce, if you have children, a judge must order you and your spouse to attend a class on helping children cope with divorce. In a fault divorce, the judge is not required to order you to attend such a program. However, the judge still has the option of ordering you to attend such a course if you file for a fault divorce.

The bottom line: There’s rarely any advantage to filing a fault divorce in Utah. A disadvantage of filing for fault divorce is that you will have to present evidence and prove to a judge’s satisfaction that your spouse has committed the fault you allege. You don’t have to present any evidence of fault if you file on grounds of incompatibility. Because it takes time to present evidence of fault, filing for fault divorce merely adds extra unnecessary time to your case.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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What Is The Difference Between Annulment And Divorce?

What Is The Difference Between Annulment And Divorce?

There are two options for legally leaving a marriage: divorce and annulment, and there are several similarities and differences between the two.

Legally, some of the biggest differences include the type of evidence that is required to obtain an annulment vs. a divorce and the obligations to and from the former spouse with each ruling. Many religions define divorce and annulment as well, and the legal ruling does not necessarily have to align with the religious designation.
Since the year 2000, Marriage rates have slowly declined from a rate of 8.2 per 1,000 total population to 6.5 in 2018, per the National Center for Health Statistics (CDC). As for divorces and annulments, that rate has also declined from a rate of 4.0 per 1,000 total population to 2.9 in 2018. While the differences in legal grounds and consequences of divorce vs. annulment arise from the same conceptual difference, a divorce ends a marriage. In contrast, a legal annulment asserts that a valid marriage never existed in the first place. A legal annulment is not to be confused with a religious annulment; the latter has no legal effect.

Here we examine the differences in the legal concept of divorce and annulment

Primary Differences Between Divorce And Annulment

The differences in the legal grounds and consequences of divorce vs. annulment arise from the same conceptual difference — a divorce ends a marriage. In contrast, an annulment asserts that no valid marriage ever existed in the first place. Although most couples choose divorce, an annulment is a better option for one or both spouses under certain circumstances. Legal annulments are rare, and the consequences of an annulment differ significantly from the effects of a divorce. Let’s dive deeper into this issue by looking at legal justifications for an annulment.

Legal Justifications For Annulment

The legal justifications for annulment vary from state to state. Some of the most common grounds include:
• Bigamy-one spouse was married to someone else at the time of the marriage.
• Incest-after marriage, the couple discovers that they are close relatives to each other.
• Duress-an example would be a “shotgun wedding”.
• Minority-at least one spouse was too young to marry.
• One spouse defrauded the other- an example would be when one spouse is proven to have lied and instead intends to use the marriage to obtain some sort of nefarious gain.
• The husband was impotent, and the other spouse did not know of this condition before the marriage.
Annulment In Contrast With Divorce

All US states allow no-fault divorce, which allows either spouse to justify divorce by citing irreconcilable differences without specifying the nature of those differences. A few states allow the use of covenant marriages as a way around a no-fault divorce. Specific grounds, such as adultery, must be proven by the spouse seeking divorce before the marriage can be dissolved.

Burden Of Proof

It is said that one party bears the burden of proof when the law places the responsibility of proving the grounds for legal action on that party. Typically, the person seeking a change in a legal relationship, such as a marriage, bears the burden of proving that the change is justified. It is the responsibility of the spouse seeking an annulment to prove that one of the foregoing grounds exists. Without enough evidence in favor of the existence of adequate grounds (higher than 50/50 likelihood), an annulment will not be granted.

As for a covenant marriage, a type of marriage available only in Arizona, Arkansas, and Louisiana, both spouses promise they will participate in counseling before filing for divorce and agree to a longer waiting period before the divorce is legally final. As is the case with an annulment, it is the responsibility of the party seeking to dissolve a covenant marriage to prove that sufficient grounds exist to justify dissolution.
There is no burden of proof needed for the dissolution of a no-fault divorce. All that is required is that one party simply wants a divorce.

Procedure To Obtain A Divorce Vs. Annulment

The procedure for obtaining a divorce and the procedure for obtaining an annulment are similar. One spouse files a petition with the court, a hearing is held, and the judge issues an order. Generally speaking, a divorce starts with a divorce petition regardless of your state of residence. The petition is written by the petitioning spouse (or their legal counsel) and served on the other spouse. It’s then filed in the county where one of the spouses resides, regardless of where the marriage was held. While not mandatory to hire legal counsel before obtaining a divorce, legal separation, or annulment, it is highly advised. Take into consideration the legal complexities of child custody, support, and the division of assets–all things that rely heavily on the understanding of the law and your rights.

Serving The Divorce Petition

Service of process takes place when the petitioning spouse serves the divorce papers or the petition (summons) to the other spouse. It’s important this phase of the divorce is handled to the letter of the law in your jurisdiction.

The Final Steps Of Legally Terminating A Marriage

In a divorce, both spouses will be required to disclose any and all information regarding combined and personal assets, liabilities, income, and expenses. If uncontested and spouses agree on the terms of the divorce, all that will be left to do is the filing of legal documents and paperwork. Once the court enters the final judgment, the marriage is legally terminated or dissolved–given the state’s waiting period. However, if spouses cannot come to an agreement, arbitration or a trial will occur. This, of course, would be the last resort, and the need for legal counsel is greatly heightened.

In the instance of a legal annulment, a judge can refuse to grant the annulment, but a refusal to grant a no-fault divorce is almost unheard of. In an annulment, issues such as child custody and child support must be resolved in much the same manner as they are in a divorce. Generally, in an annulment, neither party can claim spousal support. Additionally, property division is radically different in an annulment than in a divorce. Instead of applying the governing divorce principles of community property or equitable division, the court tries to leave each party in the same position they were before the wedding was held.

Although divorce laws, including those regarding service of process, the process by which your spouse is notified of the divorce proceedings, are broadly similar across the various states, significant differences remain. As would be with any legal agreement, consideration, and thought are sincerely advised. It is highly recommended to obtain the advice of legal counsel in regards to your local laws.

Annulment

An annulment ends a marriage that at least one of the parties believes should never have taken place. If the marriage took place despite unknown facts, such as a secret child, or even a secret illness, it may be voidable.
An annulment can also end a marriage if the marriage was not legal to begin with. This might occur if issues such as bigamy or incest made the marriage illegal.

The legal grounds for obtaining an annulment vary between states, but typically include reasons like the following:
• One or both spouses were forced or tricked into the marriage.
• One or both spouses were not able to make a decision to marry due to a mental disability, drugs, or alcohol.
• One or both spouses were already married at the time of the marriage (bigamy).
• One or both spouses were not of legal age to marry.
• The marriage was incestuous.
• Concealment of major issues such as drug abuse or a criminal history

Because one of these conditions must be met for an annulment to be granted, they are rare.

Length of the Marriage

Often, people assume that a very brief marriage can be ended with an annulment due to the short duration. However, legal experts disagree.

While many states will not grant an annulment after a certain length of time, there is not an automatic annulment granted to end a marriage because the couple wants to end it after a short period of time. The marriage still has to meet one or more of the conditions above in order for it to be annulled.

Legal Assistance

Both types of marriage dissolution can be fairly complicated from a legal standpoint, requiring costly and lengthy legal proceedings. And both start the same way, with one or both of the spouses formally asking the court for either a divorce or an annulment.

Either a divorce or an annulment can also be simple and low-cost if both parties agree to end the union without too many disputes or disagreements about how to do so.

After a Divorce or Annulment

Among the differences between the two types of marriage dissolution: After an annulment, the marriage is considered to have never legally happened. It is as if the clock is turned back to before the marriage.
After a divorce, the former spouses may still have obligations to each other, such as spousal support, joint childrearing, and division of shared property.

Finances

After a divorce, spouses are often entitled to a certain number of years of spousal support, alimony, or a portion of each other’s’ profits or property gained during the marriage. With an annulment, in contrast, the parties are not really considered to have been valid spouses and are not entitled to these same rights. Instead, they will revert to the financial state they were in prior to the marriage.

Religious Rules

Many religions have guidelines regarding divorce and annulment. Often, permission is granted by religious clergy or by written guidelines. Obtaining permission to have an annulment or a divorce from your religious leaders is usually a completely separate process from the legal process.

The rules regarding divorce and annulment in your religion often determine whether one, both or neither of the partners has permission to marry again within the religion or in a religious ceremony or to participate in religious rituals.

A court of law may consider your religious marital status but does not have to recognize the religious determinations when making rulings about spousal support, property disputes, or any other legal issues.

Can I apply for an annulment?

To apply for an annulment, you have to complete a nullity petition. Before you do so, it is important to be aware that the grounds for annulment are limited and they can be difficult to establish.

You can get an annulment if your marriage can be shown to be ‘void’, meaning it was not valid under the law in the first place. For example, your marriage may be void if:
• You or your partner were under the age of 16 when you married
• You are closely related
• One of you was married to someone else or in a civil partnership when you married
It’s also possible to get an annulment if your marriage is ‘voidable.’ This applies if you:
• Didn’t consummate the marriage – although this is not the case for same sex couples
• Didn’t give proper consent to marry: for example, if you were under the influence of alcohol or you were coerced into it
• Were pregnant with another man’s child when you married
Your marriage may also be voidable if one of you had a sexually transmitted disease when you got married.
Can I get a divorce?
After a year of marriage, you can file a divorce petition to start divorce proceedings if you can prove that your relationship has irretrievably broken down. However, this must be proven by one of the following five reasons:
• Adultery: Where you can prove that your spouse has had a sexual relationship with a member of the opposite sex during your marriage
• Unreasonable behavior: Where your spouse has engaged in behavior that you couldn’t reasonably be expected to tolerate
• Desertion: Where your spouse has been absent for more than two years in the last two and a half years, without reason, without agreement or simply with the intention of bringing your relationship to an end
• You have lived separately for more than two years: This enables you to seek a divorce if you both agree
• You have lived separately for more than five years: This enables you to seek a divorce even if your spouse doesn’t want to get divorced

If you are able to give one of these reasons, you will then have to go through a number of legal stages in order to dissolve your marriage.

What are my next steps to divorce or annulment?

Whether you think you may qualify for an annulment or you’re looking to get a divorce, it is important to seek expert legal advice. A family law solicitor will talk you through your options and guide you through this process. Separating from your spouse can be an emotionally fraught time and you will no doubt have a lot on your mind. As well as ending your marriage from a legal standpoint, you might have to resolve potentially complex issues concerning children, money and property.

A specialist solicitor will help to protect your interests and achieve the best outcome for you and your family. They will be able to tell you whether you have grounds to file for annulment or divorce, and advise you on the next steps to take. They will also help to minimize any stress and anxiety during this difficult period.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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What Is The Difference Between Alimony, Spousal Support, And Child Support?

What Is The Difference Between Alimony, Spousal Support, And Child Support?

Alimony, also known as spousal support, is an amount paid from one spouse to another following a divorce. A judge may order alimony payments for a specified period of time or until the spouse receiving support remarries. Alimony is generally intended to help the spouse receiving it maintain a similar lifestyle to the one they were accustomed to during the marriage.1 Alimony is not granted automatically—the spouse needing the alimony has to ask for it.

Tax Treatment of Alimony Payments

How you treat alimony for tax purposes depends on whether you pay it or receive it and when your divorce was finalized. If your divorce agreement was finalized prior to December 31, 2021 and you make alimony payments to your ex-spouse, those amounts are tax-deductible. That means you can deduct the alimony you’ve paid from your taxable income for the year, yielding a tax break.

On the other hand, if you’re receiving alimony payments, you must claim them as taxable income on your return. Again, this only applies if your divorce agreement was finalized before December 31, 2021.

IRS Rules Regarding Alimony

The IRS has several requirements that must be met for spousal support payments to be considered alimony, and therefore, deductible for divorce agreements finalized before December 31, 2021.
To qualify as alimony, ex-spouses must meet these criteria:
• They cannot file a joint tax return.
• Payments must be made in cash, by check, or money order.
• Payments must be owed under a divorce or separation agreement.
• The divorce or separation agreement doesn’t categorize the payments as not being alimony.
• Spouses must not live in the same household when payments are made.
• There’s no liability to continue the payments if the receiving spouse dies.
• Payments aren’t treated as child support or a property settlement.

If you’re eligible to deduct alimony payments you made, you can do that on your Form 1040, using Schedule 1. You’ll need to enter your former spouse’s Social Security number or individual taxpayer identification number on the form. Otherwise, the IRS may disallow the deduction. If you’re receiving alimony and it’s considered taxable income, you’d also report that on Form 1040, Schedule 1. And you too will need to include your former spouse’s Social Security number or taxpayer identification number.

What Determines Alimony Payments?

Alimony isn’t one-size-fits-all; the courts can use a number of factors to shape payment amounts, including:
• Each spouse’s income and employment situation
• Their individual living expenses
• How assets were divided in the divorce
• The length of the marriage
• Each spouse’s age

Alimony can be modified after the divorce in certain situations. For example, if the paying spouse loses their job they can ask the court to reduce the payment amount. And likewise, if the spouse receiving alimony sees their cost of living increase they can ask the court to order a higher support payment.

Alimony vs. Child Support

The key difference between alimony vs. child support is the intended use of each payment.
Alimony is paid for the benefit of a spouse; child support is paid for the benefit of any children resulting from the marriage.

Child support is designed to be used to meet the basics needs of the child. That includes things like food, clothing, medical care, housing, and other necessities.

Tax Treatment of Child Support

Because child support is intended to benefit the children, it’s not considered taxable income for the person who receives it. Child support payment is also not deductible for the parent who provides it.

IRS Rules Regarding Child Support

As child support is neither tax-deductible nor taxable income, there are no reporting requirements for making or receiving payments. Parents do, however, need to take care when claiming children as dependents on their taxes. Generally, the parent that the child lives with for the greater part of the year is the custodial parent for tax purposes. This parent is able to claim the child as a dependent, assuming the rules for claiming dependents are met. The non-custodial parent can, however, claim the child as a dependent if a separation agreement or divorce decree specifies that they can. The custodial parent has to sign Form 8332 authorizing the release of their right to claim the child as a dependent.

What Determines Child Support Payments?

Whether child support is court-ordered and in what amount largely depends on the finalized custody agreement and state law.

For example, some states may not order support if both parents earn similar incomes and share custody equally. Or, some states may base support on the number of children in the household and the non-custodial parent’s income.

Types of Spousal Support

Not all spousal support is the same—the amount and duration of alimony will depend on the specific facts and circumstances of your case. Most states offer different types of spousal support, including:
• rehabilitative support
• temporary support
• lump-sum support, and
• permanent support.

Rehabilitative Support

Rehabilitative alimony is typically granted to spouses who don’t yet have the job skills or education to enter the workforce and earn enough money to support themselves. Put simply, the idea behind this type of alimony is to provide an unemployed spouse the necessary time and financial assistance to become self-supporting. The duration of rehabilitative spousal varies, depending on the facts of each case, but it’s generally temporary and can be reviewed at the end of the term.

Temporary Support

From beginning to end, a divorce can take some time to complete and typically requires one spouse to move out of the marital home. During this time, spouses must continue paying the rent or a mortgage, property taxes, and other joint bills and expenses. To address these financial concerns, a judge may order temporary spousal support to the lower-earning spouse in order to maintain the status quo and cover basic necessities during the divorce proceeding. This type of alimony ensures that both parties can financially support themselves through the process.

Lump-sum Support

Lump-sum support is a way for a paying spouse to alleviate the long-term requirement of monthly payments after the divorce. Lump-sum alimony is a fixed amount that can’t be modified later and is paid up-front, so the recipient spouse doesn’t need to wait for a monthly check. The court will typically determine what the total monthly future payments would be after the divorce, and order a lump-sum payment equal to that amount.

Permanent Support

Permanent spousal support typically continues until the recipient remarries or dies (or the paying spouse dies). Some states terminate permanent spousal support if the recipient cohabitates with a new partner, but each state has specific rules for cohabitation and alimony. Courts typically reserve permanent spousal support for long-term marriages where there is a large discrepancy of income.

Spousal Support Factors

Each state has specific spousal support factors for the judge to evaluate. Unlike child support, which the court usually determines by a formula, most judges have broad discretion on whether to award spousal support and if so, the amount and duration of the assistance.

Typically, courts will evaluate:
• the length of the marriage
• each party’s ability to work
• both spouse’s health and age
• the financial status of each party after the divorce
• the recipient’s need for support and the paying spouse’s ability to pay
• general principals of fairness, and
• how each party behaved during the marriage (in some states).

If you’re going through a divorce and need alimony, or if your soon-to-be-ex is requesting financial support, consult with an experienced family law attorney before you proceed.

How Courts Set the Support Amount

Leaving a support decision in the hands of a judge is risky business. This isn’t like child support, where the formulas are clear and pretty rigid. In most states, the amount and duration of spousal support payments are entirely up to the judge. Obviously, it’s preferable for you and your spouse to keep control of decisions about spousal support. If the two of you can agree to an amount of support and how long it will be paid, then that’s what the judge will order. It’s the only way to predict what’s going to happen. Only about a dozen states give judges even general guidelines for calculating support. In these states, the judge uses a formula that takes into account the length of the marriage and the spouses’ respective incomes to calculate a starting figure. Then the judge factors in other circumstances to arrive at a final amount and decide how long the payments will last.

Need and Ability to Pay

Once the court decides that one spouse is entitled to support, it will try to quantify that need and the other spouse’s ability to pay. The judge may take into account:
• how property is being divided in the divorce
• the standard of living during the marriage, and the dependent spouse’s ability to maintain that standard in the absence of support
• each spouse’s separate income, assets, and obligations (states define “income” differently, with some including unearned income and others limiting the definition more strictly)
• the length of the marriage (more significant in deciding how long support will last than in determining the amount)
• whether the spouses lived together before they were married and whether any part of the cohabitation should be included in the length of the marriage
• each spouse’s age and health
• the needs of the children, and whether child care responsibilities affect the dependent spouse’s ability to return to work
• whether the dependent spouse left the workforce to be a homemaker or raise children
• how long the dependent spouse has been out of the workforce, that spouse’s marketable skills, and what retraining might be necessary
• contributions that either spouse made to the other’s training, education, or career advancement
• the possibility that either spouse may acquire assets in the future (such as the maturing of stock options or a large inheritance), and
• any other factors that the judge thinks should be considered.

Earning Capacity
In addition to looking at actual income, a judge may examine each spouse’s ability to earn money. The idea here is that if you could earn significantly more than you are, but voluntarily choose a lower standard of living, your spouse shouldn’t have to suffer financially because of it.
If either you or your spouse has skills or education that you are not using—for example, if you are trained as a lawyer but are working as a sculptor—the court can “impute” to you a higher income than what you actually have. You may be ordered to pay support consistent with your earning power, not your actual income. And if you’re the recipient spouse, you might get support that’s consistent with your ability to earn, rather than what you actually earn—or you may be ordered to fend for yourself.

Fault

In some states, you can argue that fault should be considered in setting spousal support (you can make this argument whether or not you filed for divorce on the basis of fault). If the higher-earning spouse committed adultery, was abusive, or is for some other reason at fault for the divorce, the support payment may be increased. Of course, as the saying goes, you can’t get blood from a turnip. If there’s only a certain amount of support that your errant spouse can afford, the court won’t order an unrealistically high payment. More commonly, the spouse who receives support has payments reduced because of fault.

Beyond Spousal Support

Spousal support is usually just a temporary measure, designed to keep one spouse from running into financial trouble immediately after a divorce. Even if you’re receiving support, you are ultimately responsible for your financial future. Make a one-year, three-year, and five-year plan for where you want to be in your life, and include what kind of work you want to be doing and what you want in terms of salary and benefits. If you received significant property or other assets in the divorce settlement, invest them wisely and with an eye toward the future. Learn to budget, if you haven’t yet.

Understanding Child Custody

For many parents, figuring out child custody is one of the most difficult and most important parts of a divorce. When children are involved, either the court must decide or the parents must agree on how to handle issues like whether and how custody will be shared, who will make decisions for the kids, and how visitation will work.

Types of Custody Arrangements

There’s no one-size-fits-all custody arrangement; the terms of your final custody plan are supposed to be tailored to meet the needs of your family. The final custody order should normally address both physical custody (which parent the child lives with) and legal custody (which parent has the right and obligation to make decisions about the child’s upbringing).

Most custody orders divvy up custody in one of the following ways:
• sole legal custody and sole physical custody to one parent
• sole physical custody and joint (shared) legal custody
• joint physical custody and joint legal custody, or
• sole legal custody and joint physical custody (rare).

When an order specifies that one parent has sole physical custody, the judge will typically create a visitation schedule to ensure the child has the opportunity to enjoy a meaningful relationship with the noncustodial parent.

How Courts Make Custody Decisions

Almost all courts use a standard that gives the “best interests of the child” the highest priority when deciding custody issues. What a judge considers to be in the best interests of the child depends on many factors, including:
• the child’s age, sex, and mental and physical health
• each parent’s mental and physical health
• each parent’s lifestyle and other social factors,
• the emotional bond between each parent and child, as well as each parent’s ability to give the child guidance
• each parent’s ability to provide the child with food, shelter, clothing, and medical care
• the child’s established living pattern (school, home, community, religious institution)
• the quality of the child’s education in the current situation
• the impact on the child of changing the status quo, and
• the child’s preference if the child is mature enough to express an opinion.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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What Is Collaborative Divorce?

It’s no secret that going through a divorce can be challenging, contentious, and expensive. Most divorces don’t rise to the level of drama presented on primetime television, but that doesn’t mean it’s a walk in the park, either. Divorces commonly require attorneys, time, money, and in some cases, a lengthy trial.

Courts in every state encourage couples to work together to resolve divorce disputes, and when you can agree, you’ll notice that the process is much more comfortable. If you and your spouse can’t agree to all the terms in your divorce, you may find it helpful to hire a mediator¬—or, neutral third party—to facilitate a conversation and resolve your disputes.

Some states offer couples divorce alternatives, like a legal separation, but again, you’ll need to be on the same page as your spouse for this legal process to work. If tensions are high and there’s no possibility for an agreement, you’ll need to follow the traditional divorce process in your state.

What Is Collaborative Divorce?

A collaborative divorce is a legal divorce process that allows couples to negotiate all the terms of a divorce, without the need for mud-slinging or fighting in court. Couples will use a combination of mediation and negotiation to reach an agreement on the critical terms of divorce, like property and debt division, child custody and child support, and spousal support.

How does Collaborative Divorce differ from other divorce processes?

There are many ways to resolve disputes.
• Litigation is the traditional legal approach. In litigation, lawyers work hard to convince a judge (or jury) that his or her client’s version of reality is, in fact, correct. Often, this includes contradicting, or even belittling, the other party, and that person’s perception of reality. Trial is often compared to a battle, in which the best side wins. However, all lawyers understand that the “best side” doesn’t always win and that in many disputes, the party who “wins” at trial still loses in other ways. In some circumstances, litigation may be the only appropriate option. For example, if a party consistently hides information or is abusive, the formal procedures used in litigation may be necessary. If a party is unwilling to negotiate in good faith, the ultimate decision may need to be imposed by a judge. Litigation usually costs more than other forms of dispute resolution and the outcome is typically less satisfactory.

• In mediation, a neutral professional assists the parties in settling the dispute. Generally, the parties agree that all information will be shared and that they are seeking a “win-win” solution. The mediator does not represent either party and the parties do not go to court. In some forms of mediation, representing attorneys serve only in a consulting or reviewing capacity. In other situations, representing attorneys participate in the mediation. Mediation can work well for parties who have the ability to communicate their needs directly to the other person and who are able to understand and analyze the information being presented.

Collaborative Divorce combines the positive qualities of litigation and mediation. As in litigation, each party has an independent attorney who will provide quality legal advice and will assist in putting forward the client’s interests. Drawing from mediation, the parties and their Collaborative Attorneys commit to both an open information gathering and sharing process and a resolution of their differences without going to court. In addition, the parties can mutually agree to engage other professionals such as Child Specialists, Financial Specialists, Vocational Counselors or other neutral consultants to provide them with specialized assistance. The parties acknowledge that the best result for each of them will occur when they reach the best result for all of them.

How is information gathered in Collaborative Divorce?

The parties do not engage in expensive legal procedures to obtain information. The parties and their Collaborative Divorce Attorneys agree from the beginning that they will share all necessary information and documents voluntarily and in a timely fashion. Hiding documents or engaging in unnecessary delays are not permitted. If a party is not acting in good faith and “hides the ball”, it is the duty of the attorney to work with the client to change his or her behavior and to withdraw if the behavior continues. If a party continues to refuse to act in good faith, the Collaborative Divorce Process can be terminated.

The parties decide what type of assistance is needed in the information gathering process and jointly engage consultants. For example, the parties can jointly hire a Financial Specialist to assist them in gathering and organizing financial information and to create projections for future financial possibilities. They can also jointly engage an appraiser to provide them with information and education regarding the ranges of value of a particular asset.

How are questions relating to children addressed in a Collaborative Divorce?

One of the most important aspects of Collaborative Divorce in a divorce dispute is the opportunity to resolve the divorce in a manner which creates a healthy co-parenting relationship so that the children’s interests and family relationships are protected. Sometimes, the parties have developed a working co-parenting relationship prior to entering the Collaborative Divorce process. However, in many cases, the parents need assistance in making the transition from parenting in one household to parenting in two households. Child Specialists can assist parents in developing effective communication and in creating a parenting agreement which will be beneficial for the children. The Collaborative Divorce Attorneys assist as needed in working out an agreement and preparing the necessary final legal documents.

How do the parties and professionals work together?

After initial meetings with their own Collaborative Divorce Attorneys, the typical process is to start the case with a four-way conference – the parties and Collaborative Divorce Attorneys meet together to discuss the issues, to make any necessary interim arrangements regarding children or finances, and to plan for information gathering. In addition, the parties can work individually and jointly with counselors to develop effective communication techniques and to manage the intense emotions that often accompany conflict. Additional consultants such as Financial Specialists, Child Specialists, or appraisers can also be hired to assist in other aspects of information gathering and processing. The four-way conferences continue to be the normal means of exchanging and clarifying information and brainstorming possible options for resolution. The Collaborative Divorce Attorneys work with each other and with their clients to plan each meeting. The parties and Collaborative Divorce Attorneys focus on educating everyone regarding the underlying information, each party’s interests and possible solutions. Out of this process, a settlement which meets the approval of the parties can be fashioned.

Does it work to have everyone together in the same room in the middle of a conflict?

The job of the Collaborative Divorce Professionals is to “set the tone” for positive communication. People in a legal dispute often feel vulnerable and emotional and can be less aware of how their patterns of communication can cause problems. The Collaborative Divorce Professionals help each client to present his or her interests and needs in a positive manner that can be heard by the other participants. Meeting together helps everyone to be “on the same page”, which ultimately facilitates reaching an agreement. The focus of the meetings is to find a solution, not attack each other.

Must an agreement be reached in Collaborative Divorce?

Any solution must be agreed to by all parties. No party is forced to accept a solution that does not meet his or her interests and needs. The parties understand that the goal is to fashion a solution that comes as close as possible to a “win-win” agreement, while recognizing that they may not receive everything on their “wish list.”
If the parties reach an agreement through the Collaborative Divorce process, what happens next?
The Collaborative Divorce Attorneys will draft the necessary legal documents to memorialize the parties’ agreement. This paperwork is then submitted to the court for approval. A court hearing is not required. Neither the attorneys, nor the parties, appear in court.

What happens if a settlement cannot be reached?

If the parties cannot reach an agreement, the parties can explore other options for settlement such as mediation, arbitration, private judging and neutral case evaluation, some of which may allow them to stay within the collaborative framework. If court hearings are required, the Collaborative Divorce Attorneys withdraw and each party retains a new attorney for trial. The Collaborative Divorce Attorney will transfer the information gathered and will assist the trial attorney in the transition.

Why is it necessary for the Collaborative Divorce Attorney to withdraw if an agreement is not reached?
Attorneys are typically trained to approach cases with the underlying assumption that a judge will make the ultimate decision. Cases are analyzed with this foundation and are settled with the backdrop being “what will happen if we go to court.” “Going to court” can often become a weapon or threat that derails communication rather than moving the parties to settlement. Since settlement has not been the focus from the very beginning, cases often do not settle until the parties are “at the courthouse steps,” after incurring substantial attorney’s fees and depleting their emotional resources.

The agreement by both the parties and Collaborative Attorneys that the Collaborative Attorneys will not go to court focuses everyone on creative means of settling the case in a way that is acceptable to all parties. The focus of the process stays on reaching an agreement rather than preparing a case for trial since the Collaborative Attorneys will not be representing the parties in court. The tendency to “drift” to court as the default decision-making method is reduced.

In addition, the parties are assured of the commitment level of the Collaborative Attorneys to the Collaborative Process by the requirement that the Attorneys withdraw if the Process is terminated. Similarly, each party is assured of the strength of the other party’s commitment to achieve a resolution that is acceptable to both of them, as they would otherwise need to find new counsel and establish a new working relationship if the Process is terminated.

Who should consider the Collaborative Divorce approach?

Collaborative Divorce works best for parties who wish to settle without going to court and are willing to commit to a good faith effort to do so. In a Collaborative Divorce, each party maintains control over his/her decision-making rather than having a judge decide about important details of his/her future. Parties also control the amount of information that becomes a part of the public record (normally, the entire divorce file is open to the public, including any allegations made by either party in obtaining temporary orders or at trial).

People in conflict often have continuing relationships with each other, as co-parents, business colleagues, or through their circle of friends and relatives, and their community. Collaborative Divorce will increase the possibility of maintaining a civil or even cordial relationship with the other person after the resolution of the conflict.

How Much Does a Collaborative Divorce Cost?

Those who wish to dramatically reduce legal fees should also consider Collaborative Divorce. A dispute that goes through the entire legal process, including a trial can cost tens of thousands of dollars for each party. Formal legal procedures can take much more attorney time (and your money) than the less formal process used in Collaborative Divorce. The focus on settlement moves the case to resolution faster than the typical court-directed case, which also reduces fees.

What do I do if I want to use the Collaborative Divorce Process?

You will need to find a Collaborative Divorce Attorney whom you can trust to provide you with both quality legal advice and the skills needed to work towards a settlement. You should discuss with the attorney how to approach the other party about choosing the Collaborative Divorce process which may include you discussing the idea with him or her, your attorney contacting the other party, or your attorney discussing it with the other party’s attorney, if one has been retained. In the alternative, you may contact other professionals who are involved in the collaborative approach and discuss the process with them.

BENEFITS OF A COLLABORATIVE DIVORCE

If you and your spouse have decided to end your marriage, you are probably not looking forward to the prospect of litigation.

However, you have options, one of which is a collaborative divorce. Here are four reasons people consider this form of Alternative Dispute Resolution or ADR.

Less expensive

One of the primary benefits of a collaborative divorce is that it is less expensive than litigation. A contested divorce can cost thousands of dollars, while a collaborative divorce is less expensive as long as you can agree. According to information from the Collaborative Law Institute, couples who use the collaborative approach to divorce spend about half what litigation would cost. This helps both parties begin the post-divorce era on firmer financial footing.

With legal fees and associated costs, a lengthy court battle can be rough on your budget. While collaborative divorce may not be cheap, it is usually noticeably less expensive than traditional divorce.
When your divorce concludes, you need enough funds to start your new life. By opting for an affordable collaborative divorce, you save some money to spend on your next chapter.

Less stressful

It is not unusual for the atmosphere to become contentious during litigation. Collaborative divorce takes place outside of court in a more relaxed environment that helps couples work out their divorce agreement. There is less stress as compared with litigation, and with less stress comes less bitterness.

Faster pace

Collaborative divorce moves at a faster pace than traditional divorce, which can go on for months, if not years. On average, collaboration is over in half the time or less than it takes for litigation to wind up.

Customized solutions

In a collaborative divorce, both spouses sit down with their respective attorneys to discuss each issue from asset distribution to child custody. Rather than having to accede to the decisions of a judge, the parties have more control over their own divorce and, as a result, their future. The parties can ask questions, state opinions and make requests as they work their way toward a divorce settlement.

You and your husband or wife may have a record of solving problems together. Even if your marriage is on the rocks, you may be able to use this cooperative experience to come up with the right solutions for your specific situation. By contrast, a judge may take a more cookie-cutter approach to your divorce.

Workable agreement

Since you and your partner are engaging in a collaborative divorce voluntarily, you are more likely to come to an equitable solution. You and your partner are also more likely to stick to the agreement. A divorce option through which couples work together to develop their own settlement agreement is the whole point of the ADR process. Collaborative divorce is a calm, respectful way to end one phase of your life and begin another.

Improved Privacy

Your information remains private. During litigation, most of the information is public record.

You retain some control

With a conventional divorce, a judge has wide latitude to determine how to end your marriage. While you may not agree with a judge’s order, it is legally binding. With collaborative divorce, though, you have an opportunity to negotiate matters with your spouse. If you can reach an acceptable agreement, a judge is likely to respect it.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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What Is An Alimony Waiver? And Am I Eligible To Get One?

What Is An Alimony Waiver? And Am I Eligible To Get One?

Alimony, or spousal support, is money designed to provide for the lesser earning spouse during and after the divorce. However, alimony isn’t required and it can sometimes be waived. It may be difficult to know if this is or isn’t in your best interests.

Here’s what you should know Utah alimony waivers and how to get the legal help you need when faced with the end of your marriage.

What Is an Alimony Waiver?

An alimony waiver is a formal document that states that you and/or your ex-spouse agree that the court will not award alimony, support, or spousal maintenance when the final divorce decree is issued.

You can also waive alimony in your final divorce decree if you haven’t already done so with a prenuptial or postnuptial agreement. Simply inform your attorney that you are not interested in receiving support and they will ensure the correct language is built into your divorce decree.

If your spouse has historically been the primary wage earner or primary source of financial support for the family, it is typical for that arrangement to continue after the divorce with an award of alimony to you, as the non-working or lesser earning spouse. However, what happens when you and your spouse have similar levels of income, or if neither of you work? In that case, there may be an alimony waiver, or an award of “one dollar a year” of alimony.
If you waive alimony at the time of your divorce, you are also waiving any claim for past or future alimony. There are different reasons why you may consider waiving alimony:
• You are the primary wage earner in your family
• You have not historically relied on your spouse for financial support
• You and your spouse were married for a very short period of time
• You and your spouse have similar levels of income
• You are confident in your ability to support yourself in the future
There is no requirement that an alimony waiver be mutual. Alimony can be waived by one party and not by the other. If you decide to waive alimony, at your divorce the Judge will ask you questions specifically about that alimony waiver, in order to determine that you understand what it means to waive your right to support and to verify that you can care for yourself financially.

What happens if you are comfortable waiving alimony at the time of your divorce, but do not want to preclude your right to ask for an award of alimony in the future? The answer may be that your spouse pays you “one dollar a year” in alimony for a certain period of time (the alimony term). The $1 is symbolic. It really means that no alimony will be paid to you for the time being, but it leaves the door open for you to ask for a modification of the alimony amount in the future. Leaving alimony open with an award of “one dollar a year” may be appropriate if:
• You are currently working but your future employment is uncertain
• There is a possibility that your spouse will return to the workforce or make significantly more money in the future
• There are health concerns that prevent you from knowing if you will be able to support yourself in the future
• You have been married for many years and you and/or your spouse are of advanced age
When Can Spousal Support be Waived?

Under Utah law, spousal support can be waived by a person prior to the marriage in a prenuptial agreement. However, there are specific requirements that must be met in order for an individual to waive or provide provisions to their right to alimony. The future spouse must have independent legal counsel at the time of signing the prenuptial agreement and the terms must be conscionable at the time of signing. If these requirements are met, spouses are allowed to determine support before the wedding.

Considerations Before Waiving Support

There are many considerations that must be made before deciding whether to request or acquiesce to a waiver of spousal support. One consideration is whether a spouse earns enough in a current job to be able to waive support and still maintain financial independence. Another is of personal beliefs, where an individual must consider if they are comfortable with the idea of receiving monetary support from a former spouse. Some people find the concept embarrassing or counter to the ideas of feminism. Finally, you must consider whether alimony can make up for any economic loss incurred as a result of the marriage, either by limiting job options or for the loss of career by leaving the workforce while the marriage is ongoing.

Alternatives to a Blanket Alimony Waiver

A couple may also want to consider alternatives to a blanket alimony waiver in a Utah prenuptial agreement. Provisions can be made in the contract that limit the amount or duration of spousal support that the court might not find unconscionable compared to a blanket waiver of support. For example, a couple might agree to alimony payments for one half of the duration of the marriage, or the prenuptial agreement might provide that alimony payments are only made to a certain monetary amount.

Another alternative to a blanket waiver is to include spousal support as an incentive for the marriage or if a triggering event occurs. For example, a spouse will waive alimony unless the marriage lasts for a certain length of time, or spousal support will trigger if a spouse reaches a certain age, incurs a disability, or a situation arises which renders the spouse unable to rejoin the workforce after the marriage.

Can You Waive Alimony in a Prenuptial Agreement?

You are getting married, you know you want a prenup, but you do not want to have to pay alimony in the event of a divorce. Can you waive alimony in a prenuptial agreement? The answer is yes. You can waive alimony in a prenuptial agreement; however, it must be done with the significant caveats and disclosures and there is never a 100% guarantee. The other party must be represented by an attorney, or a very solid waiver (which is still a risk).
However, if the waiver of alimony would leave the spouse needing government assistance, the court can and will set aside the waiver of alimony. At the end of the day, there is no guarantee and it will ultimately be up to the judge to decide whether the waiver is enforceable.

Facts and actions that occur during the marriage can also come in to play.

If your prenuptial agreement waives alimony, then a court will be forced to honor this provisions – even if your circumstances at divorce are much different than they were when you signed the prenuptial agreement. However, a court will not uphold a prenuptial agreement that waives alimony if you or your spouse will not be able to make ends meet without it. This is because public policy disfavors agreements that will make individuals wards of the state (like by relying on Medicare/food stamps).

The best bet is to include a formula for when and how much alimony should be paid. This can be based upon the differences in incomes, length of the marriage, or any other factor you want to include, such as no alimony if the other spouse commits adultery. Allowing for some form alimony versus a complete waiver is just a safer route to go. At the end of the day, a prenuptial agreement is a contract and you can agree to anything so long as you meet the legal requirements for a valid prenup, and the terms do not violate public policy or the contract contains terms that are illegal. But again, and I cannot reiterate this enough, if the prenuptial agreement is contested, it will be up to the Judge to decide and everything is fair game at that point.

Am I Eligible to Get Alimony Waiver?

Alimony is there to help prevent any unfair financial effects as a result of a divorce. For example, if you have been a stay-at-home parent for many years and find yourself in need of an income after a divorce. In this case, you could benefit from alimony to help support you.

Why You May Waive Alimony

There are many reasons why you may decide to waive alimony, however, here are some of the most common reasons:
• You have never relied on your spouse for financial support
• You are the main earner in your household
• You have not been married for very long
• You and your spouse earn similar wages
• You are confident you will be able to support yourself

What Happens When You Waive Alimony?

When you decide to waive alimony, it is a permanent agreement that you cannot modify in the future. So, what happens when you feel confident in being able to support yourself at the time of the divorce but do not want to waive your rights to alimony in the future? In this case, you may want to consider entering an agreement for your spouse to pay you “one dollar a year” in support. As a result of this, it will leave room for you to ask for a rise in alimony in the future if you feel that you need it.

The Danger of Waiving Your Right to Modify Spousal Support

In divorce cases involving spousal support, your spouse or his or her attorney may ask you to waive your right to modify spousal support in the future. Some lawyers call this a “Staple waiver”. Such waivers are extremely dangerous, however, and they should not be entered into without first consulting with qualified legal counsel.
If you do not waive your right to modify spousal support, a court will have the authority to modify the spousal support award in the future. This right to modify is important because if you lose your job, become injured or ill, or experience any other misfortune that reduces your income, you can always go back to the court and ask the judge to reduce or even eliminate your spousal support obligation. However, if you have waived your right to modify, and at some time in the future you experience a reduction in income for whatever reason, your former spouse can force you to continue paying spousal support, and your former spouse can even request that the court put you in jail for not paying spousal support no matter how good your reason is for not paying. Thus, your right to modify the spousal support award is extremely important because, as we all know, none of us has absolute control over our future nor can we know exactly what the future holds for us.

If you have already waived your right to modify a spousal support award, there may still be hope. If there was no discussion in court regarding the modifiability of the spousal support award or no indication that anyone explained to you the effect of waiving your right to modify the award, then your waiver may be invalid, and you may be able to have it set aside. Or, if your Judgment of Divorce does not specifically declare that you were forgoing your right to modify the spousal support award or does not state that the spousal support award is final, binding and nonmodifiable, you may also be able to have your waiver set aside.

Only a qualified family law attorney can tell you whether a Staple waiver is right for you or if you have validly waived your right to request the court to modify a spousal support award.

In Utah, you can waive your right to alimony in a number of ways:

Post-Nuptial Agreement or Settlement Agreement

Similar to a prenuptial agreement, you and your spouse may enter into an agreement after you are married (a postnuptial agreement) or at the time of your divorce (marital settlement agreement) that deals with issues of property/asset division, debt distribution and spousal support. You can also waive your right to spousal support in these types of agreements. And, like prenuptial agreements, the court will be obligated to uphold your waiver of spousal support unless doing so would force you to become a ward of the state.

It is important to note that while you can affirmatively waive your right to spousal support in pre and post-marriage contracts, you can also include provisions that permit you to seek or modify an alimony award at a later date. In fact, this is the only way to possibly obtain spousal support after you have waived your right to do so by contract. For this reason, you should always include terms that allow you to petition for alimony in the future – no one knows what can happen in the future.

Failure To Request Alimony

Finally, it is possible to waive alimony by failing to request it. If you do not enter into a pre or post-marital contract with your spouse, then odds are good your divorce case will be litigated. At the very least, you or your spouse will petition the court for a divorce and the other spouse will have an opportunity to answer the petition. If you fail to request an award of spousal support in your petition, answer or at an appropriate time during the litigation of your divorce case, then you will likely waive your right to alimony. Once the final divorce decree has been issued by the court, it will be extraordinarily difficult to ask for support later. For this reason, you should always ask the court for alimony or at least the right to request it in the future during your divorce.

As you can see, there are a number of ways to waive your right to alimony in Utah. You can also tell that once you have waived your right, it is highly unlikely that you will be able to receive spousal support in the future. For this reason, you should always consult with a qualified divorce or family law attorney before deciding to waive alimony or when entering into pre and post-marital contracts.

You need to carefully weigh your options and the ramifications of giving up your right to alimony. If you give up your right to alimony, you have not only lost the money you could have earned during the marriage, but you also give up the right to maintain the lifestyle you were afforded during the marriage itself.

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Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
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