Utah Divorce Code 30-3-4.5

Utah Divorce Code 30-3-4.5

Utah Divorce Code 30-3-4.5 – Motion For Temporary Separation Order.
(1) A petitioner may file an action for a temporary separation order without filing a petition for divorce by filing a petition for temporary separation and motion for temporary orders if:
(a) the petitioner is lawfully married to the respondent; and
(b) both parties are residents of the state for at least 90 days prior to the date of filing.
(2) The temporary orders are valid for one year from the date of the hearing, or until one of the following occurs:
(a) a petition for divorce is filed and consolidated with the petition for temporary separation; or
(b) the case is dismissed.
(3) If a petition for divorce is filed and consolidated with the petition for temporary separation, orders entered in the temporary separation shall continue in the consolidated case.
(4) Both parties shall attend the divorce orientation course described in Section 30-3-11.4 within 60 days of the filing of the petition, for petitioner, and within 45 days of being served, for respondent.
(5) Service shall be made upon respondent, together with a 20-day summons, in accordance with the rules of civil procedure.
(6) The fee for filing the petition for temporary separation orders is $35. If either party files a petition for divorce within one year from the date of filing the petition for temporary separation, the separation filing fee shall be credited towards the filing fee for the divorce.

Motions for Temporary Orders

A Motion for Temporary Orders asks the court to deal with important issues while you wait for the final hearing. If you get a temporary order, it will last until the judge makes a new order or a final decision. It can take months to get a judgment (final decision) in your case. If you need the judge to make an order about something right away, you can file a Motion for Temporary Orders. A Motion for Temporary Orders asks the court to deal with important issues while you wait for the final hearing. If you get a temporary order, it will last until the judge makes a new order or a final decision.

Some common motions are the
• Motion for Temporary Custody Order,
• Motion for Visitation Order, and
• Motion for Child Support Order.
When you file a motion, you need to file:
• A motion form.
• You can also ask for it at the court clerk’s office.
• Write on the motion form what you want the court to Order.
• An Affidavit.
• In an affidavit you swear that everything you say is true.
• Write the facts the judge needs to know about what happened, and when.
• A Proposed Order form.
There will be a hearing on your motion. Usually you can choose the date for the hearing. Ask the court clerk which days the court hears motions, and then pick a day that works for you. Later, you might need to file a Motion to Modify a Temporary Order. You may need to file a motion if there is a very important change in your situation or if there is an emergency. Some judges do not permit filing motions to modify temporary orders while the case is going on.

Do I have to serve the Motion for Temporary Orders also?

Yes. Motions for Temporary Orders must also be served. Serving the motion when you serve the complaint give the motion, affidavit, and proposed orders to the sheriff or constable to serve with the complaint. Be sure to write down the time, date, and place of the hearing on the motion.
Serving a motion later

• Mail the motion, affidavit, and proposed orders to the other party. Be sure to write down the time, date, and place of the hearing on the motion. You must mail it at least 10 days before the hearing; or
• You or a friend can hand the motion, affidavit, and proposed orders to the person you are taking to court. You or your friend must hand the other party the papers at least 7 days before the hearing.

Family Court Decisions: Temporary Orders

When a couple decides to separate, many issues come up that must be decided. Formal family court decisions can take months or even years, and many issues can’t wait that long. For example, child custody, child and spousal support, possession of the family car, and possession of the marital home are all issues that must be decided quickly, long before the formal divorce or legal separation hearings. Temporary orders by family courts, covered in greater detail below, serve to address these urgent issues in a timely manner. Temporary orders are made by family courts at a hearing when couples separate. In some states, a party can request a temporary order from the family court even before separation papers are filed. The hearing will then be scheduled within days or weeks. Decisions on issues that must be resolved quickly are made, and given temporary effect, until family court decisions can be made in a formal divorce hearing or until the parties agree through mediation or negotiation. Despite their temporary legal effect, temporary orders are often considered when making formal family court decisions. Temporary order hearings are far less formal and much shorter than formal family court hearings, so you should be sure that you know exactly what you want before the hearing. The hearing will proceed quickly, not giving you much time to tell the court what you want. Since every situation is unique, there isn’t a set list of issues that may be addressed. However, the following types of family court decisions are commonly made in temporary order hearings:
• Sale or possession of the marital home
• Possession of the family automobile
• Child support, usually based on the child support guidelines/calculator
• Spousal support
• Child custody and visitation schedule
• Health Insurance
• Uninsured medical expenses
• Restraint of a spouse from contacting or coming near the other spouse (this can have the effect of forcing the other spouse out of the marital home)
• Order either spouse from selling valuable assets and marital possessions
Remember that all of the decisions made through temporary orders are not permanent. They’re intended to maintain the family’s security and circumstances until more formal and steadfast family court decisions can be made.

Importance of Temporary Orders for Child Custody

Some spouses are able to agree on things on their own. If you find yourself in that situation, that’s great and probably will save you some hassle. Just be sure you and your spouse write out the child custody and visitation agreement together and sign it so that there’s no doubt about the agreement later. If you and your spouse can’t agree on these issues, like many couples facing separation, you should seek a temporary order immediately. This is especially important when it comes to child custody. If you’ll be maintaining custody of the child(ren), especially if you take them away from the home, it’s important to at least file for custody as soon as possible. If you don’t, your spouse could try to file a kidnapping claim against you. Not only will a judge and/or police take this claim seriously, but it could come up against you later in your divorce hearing. If you file for custody and your spouse files a claim of kidnapping against you, the judge will see your custody request and the kidnapping claim can be dropped.
The hearing is the place for the judge to:
• Review the details of your request;
• Consider the underlying facts;
• Ask any questions of the parties;
• Get your spouse’s side of the story; and
• Consider your financial circumstances and the state guidelines to come to a recommendation on child support.
Often, your temporary order hearing will be sent to what is called “probation.” Probation is an opportunity for the separate parties to agree on as much as possible, before they go in front of the judge. This saves the court and judge a lot of time and allows more time to focus on the actual conflicts at hand. The issues that can’t be resolved in probation are presented before the judge, where each side presents its argument. The hearing usually is no longer than 20 minutes and is held either in a courtroom or the judge’s office. The judge will listen to both sides and the declarations of any witnesses. Some judges only accept written evidence.

Temporary Order Requests: How Decisions are Made

It’s not common for the judge to make a decision right then and there from the bench, unless the issue is particularly time-sensitive (in which case the specific issue will be decided). The entire temporary order is made within a week of the initial hearing. If granted, the order you fashioned will either be granted in its entirety or modified by the judge as they deem appropriate. If you’re seeking a request for temporary child support, you may be required to present income documents and an outline of your expenses. Some courts have you fill out pre-made forms before or when you file your request. Even if your state has no such requirements, it may be good to prepare these documents anyway to support your claims for financial support. Sometimes, the judge decides that more information is needed to make an appropriate decision or that your spouse was not given appropriate notice before the hearing. In these cases, the judge might make a decision that’s only effective until another temporary order hearing can be held. The temporary order includes any agreements the parties were able to make before the hearing, including agreements made in probation. If the parties happen to come to a complete agreement during probation, then the judge will review that agreement. Usually, the judge finds these agreements satisfactory, and can order such agreement serve as the temporary order. Temporary orders are only effective until your divorce settlement, or until you and your spouse reach a mutual agreement to settle the divorce. However, the decisions made in temporary order hearings can be influential in divorce proceedings.

How to Request a Temporary Order

Requesting a temporary order involves filing some paperwork with the family court. Many courts have these forms available online on their courts’ websites. Check to see if your court has a self-help law center, where these forms would be available. Sometimes, courts even hire people to help you sort through the paperwork. States vary on when you can file for temporary orders. Some states require you to wait until divorce papers have been filed, while other states allow you to file upon separation.
The following are common requirements for filing a request for a temporary order.

• An Order to Show Cause: Also called an, “Application for Order to Show Cause,” this is a document that requires you to state what you are asking for, like child custody, through the temporary order. This document then calls your spouse to court to “show cause” of why your requested order should not be granted.
• A Supporting Declaration: This written document states the relevant facts that support why your order should be granted. You would set out your financial information, for example, to show the need for temporary child support. Declarations of other people could also be included in a supporting declaration, so long as they have first-hand knowledge of the relevant facts they are asserting. Keep in mind that courts take perjury very seriously, so you want to be careful not to misrepresent or embellish these facts in order to help your cause.
• A Proposed Temporary Order Giving You Your Requested Relief: This is a document that sets out the terms of the order. It states exactly what is being ordered. You bring this to court and if the family court judge grants your temporary order, he or she will sign the document.
• A Proof of Service Document: The court needs this document to prove that all of the necessary court documents have been delivered properly to your spouse. When you obtain your proof of service form, there should be instructions on how to file it with the court. You can also look into your state’s law about filing proof of service papers. Some courts list these instructions on their websites.

Talk to an Attorney at Ascent Law LLC about Temporary Orders in Family Court Actions

Divorce, spousal support, child custody, and other family law issues typically arise at once, although finalization of these processes can take months or years. If you and your estranged spouse are unable to agree on terms while waiting finalization, you may need to use temporary orders. Have an experienced family law attorney review your case and give you some peace of mind.

Divorce Lawyer

When you need legal help with a divorce in Utah, please call Ascent Law LLC 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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Is Legal Separation Recognized In Utah?

Does Utah Recognize Legal Separation

A legal separation in Utah is called “separate maintenance – a court will detail the monetary support guidelines and child custody issues and the division of marital property. Couples hoping for reconciliation may prefer this form of separation to divorce. Utah requires married couples with children under the age of 18 to attend classes to educate themselves on divorce, and couples with no children must still undergo a 90-day waiting period. Moreover, married couples filing for divorce must also attend a mediation session to resolve remaining disputes before going to trial. Filing for legal separation circumvents the class requirements and the 90-day waiting period. Parties are legally separated only when a court enters a decree of separate maintenance. To obtain a decree of separate maintenance in Utah, the parties go through an action like a divorce.

Separate maintenance divides property, awards custody of children, and provides for child support and alimony, but does so on a temporary basis; the decree of separate maintenance does not end the marriage. Alimony under separate maintenance is more common than under a divorce decree because the parties are still married, and the law requires spouses to support one another. Once the separation occurs, the separated couple may file for a divorce, which is independent of the legal separation. Court and attorney fees for legal separation and divorce are equal, but couples seeking a divorce after a separation will end up paying the same amount twice. Couples seeking legal separation must resolve issues similar to that of divorce, including child custody and visitation, dividing up property and child support, and paying debts.

Separation Agreement

A separation agreement is a legal binding contract signed by spouses, which is intended to resolve property, debt and child related issues. This can be a very complex and detailed document depending upon the unique situation of the marriage. Many spouses consult an attorney to provide this or they decide to prepare their own.

Couples can obtain a legal separation on a few different grounds, which include one party having deserted or left the other without reason or, although able, neglects or refuses to provide for the other spouse. One can also seek legal separation when the other is imprisoned for a period exceeding one year, preventing that incarcerated party from providing for the spouse. Additionally, legal separation is obtainable when spouses live separately but claim no grievance.

In order to be eligible for legal separation, both spouses must have been Utah residents for the past 90 days

Twenty days after the paperwork petitioning the court for a legal separation has been filed, the respondent receives a summons to appear in court. In court, the petitioner explains the grounds for the separation, and the judge generally grants a decree of legal separation.

Legal separation is a difficult, emotional topic. For this and many other reasons, you should hire a Utah legal separation attorney to help you. It’s especially important to take practical legal steps and use the proper legal separation agreement forms to protect yourself and your children when you’re dealing with an emotionally charged situation. A separation agreement spells out the terms agreed on by the separated couple for handling important matters, such as property division, child custody and child support, while living apart. When filed in family law court, a separation agreement can be enforced with the court’s contempt power if not obeyed. Getting a legal separation doesn’t change the fact that the couple remains married under the eyes of the law. However, if the couple later decides to divorce, a divorce court will often incorporate the terms of the separation agreement into the final divorce decree.

How Do You Get a Legal Separation?

The divorce law in your state, which varies by state, defines what is required for getting a legal separation. If you’ve been wondering “how can I get a legal separation”, US Legal Forms offers state-specific legal separation forms that can be easily completed from your own computer. You don’t need to be an expert in the divorce law of your state to use our forms, simply fill in the blanks according to the terms you’ve agreed on. Many states allow the papers to be filed by the separated couple in family law court. You will first need to sit down with your spouse and discuss how you will address important issues while separated, such as:
• Property division, including who will use shared vehicles and resides in the marital residence.
• Support and custody of a child or children. State child support guidelines may be used as a reference.
• A legal separation agreement can include terms for spousal support.
• Payment of bills, including insurance and uncovered medical expenses.
• Payment of income taxes and assignment of deductions.

There Are Residency Requirements in Utah

There are residency requirements to get a legal separation in the state but they are lenient. To be eligible for a legal separation in Utah, both spouses must have been living in the state for the past 90 days. Twenty days after the filing the petition to the court for a legal separation, the respondent will receive a summons to appear in court. Once in court, the petitioner will have the opportunity to explain the grounds for the separation. At this point the judge generally grants a decree of legal separation.

In a legal separation, you are still responsible for the debts of your spouse even though you are no longer living together; in a legal separation you are still liable for spousal debts. You are also responsible for legal issues they may be involved in. A legal separation decree would address agreement on these debts. If a spouse neglects to pay certain joint marital debts however, creditors can still come after you. If legal documents are not filed detailing your separation agreement, this is not considered being “legally separated” and how you will share your marital assets, debts and other costs can likely cause problems in the future, which could potentially lead to complicated litigation.

Unlike in a divorce, there is no waiting period for a decree of separate maintenance. If there are no complications a legal separation could be complete in a few weeks. Choosing to end a marriage can be one of the most difficult decisions a couple can make. After all, when a couple has difficulties in their relationship, tensions and emotions can be high and the options available to you to make necessary decisions can be confusing. While you may have decided that your relationship is definitely not working out as you expected, take a little time to educate yourself about what your possible next steps should be.

An annulment is a formal declaration from the court that goes beyond ending the marriage by stating that the marriage never occurred. An annulment is very difficult to obtain because you must prove that under Utah law, the marriage was never valid. There are several instances where this may be shown. For instance, your marriage is not valid if you can show that your spouse was already married to someone else when your marriage occurred. In that case, you would need to show that your spouse lied to you or withheld information about their marital status. Demonstrating this situation would show that if you had known, you would never have married.

Divorce is the second option. A divorce decree will terminate the marriage. You may also have other issues addressed by the courts such as:
• Custody
• Visitation
• Child support
• Property division
• Alimony
• Pensions
A third option is a legal separation. In Utah, this is referred to as “separate maintenance”. With this option, you technically will still be married but will reside in remain legally married but live independently from your spouse. Separation can occur informally, without the intervention of the courts, or legally. In separate maintenance, a judge will issue an order granting the separation and legally changing your marital status. If you and your spouse are now living apart but have not taken the steps to file for a separate maintenance petition, you will not have this “legally separated” status. Perhaps you are not ready to take the step to file for separate maintenance or divorce but need help with issues such as child support, alimony (support for spouse), child custody and visitation. You can get help with these issues through the courts separately without filing for divorce or separate maintenance.

The primary difference between divorce and being legally separated in Utah is that are still married, even though, you have a separate maintenance decree from the court. With a divorce decree, the marriage is ended. While both processes are similar, it is the outcomes that are different. Under separate maintenance, you live separately but remain legally married to your spouse. The wife may not take her maiden or former name. Your rights and duties to one another will be laid out in a Decree of Legal Separation. Utah laws mandate that spouses care for each other and their children.

This temporary order addresses issues such as custody and child support, alimony, the division of property and the repayment of any debts. These orders remain valid for one year from the date of the hearing. If you should decide later on to divorce, you will need to file a separate petition to divorce. If you decide the legal separation is the most appropriate step for you, you will need to file a petition in your Superior or Family Division Court. However, realize that this is not necessarily the first step to getting a divorce. While processes are similar in cost and length of time (8-10 months on average), they are different.
There are key differences between a separation and divorce. The most basic and obvious distinction is that you remain married during a legal separation and in a divorce, your marriage is dissolved. Other differences include:

• Health care/other benefits: Legal separation allows for the retention of health care and other benefits including certain social security benefits that terminate with a divorce.
• Marital status: Legal separation allows you to retain your marital status, meaning that you’re not free to marry another; once you’re divorced, you can remarry.
• Decision-making: Spouses are still considered next of kin and can still make medical or financial decisions for the other; divorced spouses aren’t considered next of kin.
• Debts/liabilities: Spouses may still be responsible for the debt of the other in a legal separation, unlike a divorce where the debts are handled during the dissolution process.
• Property rights: Legal separation preserves each spouse’s legal rights to property benefits upon the death of the other, but a divorce extinguishes these rights.
• Remarriage/reconciliation: Divorce cannot be undone; reconciliation is easier with legal separation. With a divorce, you would have to remarry if you want a legal reunification.
Similarities Between Legal separation and Divorce
In both divorce proceedings and in the proceedings for legal separation, the court decides the following:
• Separation maintenance (a legal separation includes the equivalent to alimony and child support, but is distinguished from the effects of a divorce and is usually achieved through a “motion pending litigation”).
• Child custody
• Child visitation
• Property division (both legal separation and divorce property division is based on the couple’s situation and how it relates to the property)

Living Separately and Impact on Property Division

Circumstances may arise that lead to couples living apart with no intent to continue the marriage. Additionally, some states have laws that require couples seeking to file a no-fault divorce to live apart for a designated period of time. Living separately can affect the property division. Property and debt acquired while living separately is classified differently depending on where the couple lives. Some states determine the property classification based on whether either spouse has the intent to end the marriage.

Trial Separation

Couples can also have a trial separation, but it has no real legal effect and is viewed only in terms of time in the couple’s marriage. Any property or debt acquired during a trial separation is still considered to be acquired during marriage and therefore, likely marital property.

Permanent Separation

Once a couple decides to separate for good, they have a permanent separation. This permanent separation probably has no legal effect as compared to a legal separation in which one of the spouses has filed separation paperwork in court. Most states view all property and debts acquired after a permanent separation as the separate property of that acquiring spouse. Debts that are acquired by either spouse after a permanent separation, but before a final divorce, and are used for family necessities, are treated as joint debts of both spouses. These debts can include things like house payments, maintenance of the family home, and expenses relating to the children’s care. Because each state has its own laws regarding property and debt division, it’s important to check the laws where you live. These determinations can become quite convoluted due to the changing of the couple’s circumstances, so it’s a good idea for each spouse to consult with his or her own attorney for help. A local family law attorney can help you sort through the consequences of a legal separation.

Legal Separation Attorney Free Consultation

When you need to get divorced or a legal separation in Utah, please call Ascent Law LLC 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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