What Is Collaborative Divorce?

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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 If My Spouse Evades Service Of Divorce Papers?

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What If My Spouse Evades Service Of Divorce Papers?

When a marriage hits the buffers, ideally both husband and wife will agree to get divorced. However, many divorces are contested by one party which makes the whole process more difficult and leads to protracted negotiations.
What can make things even trickier is if one spouse refuses to engage at all and ignores the divorce papers. So what can be done in this scenario?

Depending on intentional or accidental dodging of divorce papers serviced to the other spouse, the person wanting to legally end the relationship may have options based on the state of residence. Some of these options involve using the mail service or having an official person track down the other spouse and serve the papers in front of witnesses.

The process of divorce can be complicated even in the best of circumstances, but becomes more difficult when a spouse doesn’t respond to a divorce petition. An attorney can help those who are served to respond in an appropriate way to protect their legal interests and can assist those who are filing for divorce with a non-responsive spouse
What are my options if my ex does not acknowledge the divorce papers?

One of the first major steps in getting a divorce is for one divorcing party to complete a matrimonial order (formerly called a divorce petition) which essentially comprises the divorce application to the court. Once the application has been submitted and approved, the court will send a copy to the other spouse along with an ‘acknowledgment of service’ form.

They must respond to this form within 8 days – either agreeing with the divorce or contesting it (or objecting to any costs). Once this has been done, the divorce can proceed to the next stage which is the application for decree nisi. But sometimes the other party fails to respond to the acknowledgment of service form. This may be due to an oversight or change of address – so as a first step it is worth contacting them informally to ask if they have received it Okay.

Serving Divorce Papers – Legal Options if Your Spouse Is Dodging Acceptance of Service

The Misconception

Many spouses in the United States believe that they can dodge the paperwork and not need to worry about going through a divorce. However, even if not served, the other spouse can move forward with the process of either divorce or to start the legal separation. The individual that seeks the divorce can use publication such as a newspaper to start the process when there is no other option to contact or serve the papers to begin. In this last resort, the spouse has the option to keep the publication going for two weeks in standard divorces.

Postal Address

If the first attempt to have the divorce petition papers fails, the spouse can send the documents in the post office mail to a P.O. Box or directly through the mail such as a certified letter. Reasonable measures are necessary first before seeking publication. However, this can lead to nearly anyone serving the paperwork to the other spouse to start the divorce process. This can even include anyone over eighteen that qualifies. If that fails, the individual can hire a private detective to help with this situation and ensure that the other spouse takes the papers at some point.

Using a Third Party

If the other spouse is dodging service papers, the one seeking the divorce may need to become creative. This may lead to hiring a third party to serve the papers as a person involved in his or her life at least momentarily such as a co-worker or someone the individual sees daily. With a third party, papers served will usually occur with several witnesses that require a receipt of the served documentation. If this does not work, the spouse has other options that may become necessary to include the last resort of using a publication to provide notice of the divorce.

Hiring a Private Detective

If the other spouse is unable to find the husband or wife, it is often possible to hire a private detective to accomplish this and ensure he or she receives the papers for the divorce. Then, there is also verifiable evidence of the served documentation. This can cut out the need to publicize the notice of divorce and also give the person the needed photographic or video evidence to the judge presiding over the case. This can cut out any other last resort methods and cut down the time involved in the last procedure in serving the notice.

Satisfying the Court

It is important to satisfy the judge to ensure that the process of divorce proceeds properly. This court authority will want to know what notice was given about the case to progress to the next step. He or she will usually provide a default judgment in these situations when the other party does not respond or attend the case. The petition of the divorce is often then granted as is without any changes because the other spouse does not counter it or arrive in the courtroom to refute the action with this party.

The Attorney in the Divorce Stages

The attorney is necessary from all levels of the divorce case. He or she can explain what stage to go to next, what to do and how to proceed with the petition and the judge. He or she will present the case and explain the details of the goals that the spouse wants to accomplish. The lawyer can also help with finding other professionals for hire with these processes.

Spouse Won’t Accept Divorce Papers?

When your partner does not sign divorce papers, what happens next will depend on the details of your situation – and, more specifically, whether your partner can be located and/or whether your partner contests the divorce.

Serving Divorce Papers

One of the initial steps of a divorce is serving a Complaint for Divorce, also called divorce papers. The complaint initiates the divorce by explaining who the parties are, asking for property, asking for support, and requesting other relief. The complaint is the paper declaring to the other person they are being sued. In all legal sense you are suing your spouse for a divorce.

Along with a complaint, most divorce papers consist of a summons, and joint preliminary injunction. The summons is the legal paper signed by the court noticing the defendant there are being sued and have 20 days to respond. The Joint Preliminary Injunction (JPI), explains you cannot incur community debts or dispose of community assets without the permission of the court.

Your spouse will only have 20 days from the date received to respond to the filed divorce papers. To ensure the papers were properly received, the court will not allow you to simply hand the documents to your spouse. Imagine how many people would say the papers were served when in fact, they weren’t. To keep everyone honest, the divorce papers need to be served according to Rules of Civil Procedure (RCP).

Hiring a Process Server

RCP requires the divorce papers to be served by an independent person over the age of 18. Law firms hire process servers to handle this task. Process servers are people who serve court papers as a course of business. You may also use a constable, but they are more expensive and typically take longer. Normally, the process server will serve the divorce papers to your spouse’s last known legal residence, or in person to your spouse whenever possible.
The process server does not need to have anything signed. They simply need to leave copies of the papers at the residence with someone of suitable age. The process server then completes a form declaring they served the documents. This is all the court needs to consider service completed and to start the 20 day deadline.
In some cases, the spouse attempts to avoid service or is impossible to locate. Maybe you have been separated for several years and didn’t keep tabs on each other. In this situation, you need to ask the process server for their “due diligence”. This means they will make every attempt possible to serve your spouse. They will contact their job, talk with co-workers, talk with neighbors, call family members, run online searches, check with the department of motor vehicles, and even send emails or text messages.

If the process server attempts all methods of service, and documents these steps then a divorce lawyer can ask the court for your spouse to be served by publication.

Serving Divorce Papers When a Spouse Cannot Be Located

In some cases, divorce papers won’t be signed because a partner moves and cannot be tracked down. When this occurs (and when reasonable efforts to track down the person are unsuccessful), a request can be made to a family court judge to publish the Summons in an effort to notify the Defendant (i.e., the spouse who cannot be located) about the impending divorce action.

This publication can occur in any “newspaper of general circulation,” and the notice must be published at least once a week for a minimum of four weeks.

You will need to run a notice of intent to divorce in a newspaper located in the city of the last known address of your spouse. There is a typical newspaper in almost every metro city. You will need to run this notice for about a month. The newspaper will send you a notarized statement after the publication. This notarized statement is filed with the court to satisfy the service of papers. With this, the timer for your spouse to respond to the divorce papers will start.

Next, one of two things can happen. The first is your spouse responds by filing an answer. If this happens, then the standard divorce process unfolds.

The second, is your spouse doesn’t respond within 20 days. If after the 20 days your spouse has not responded you may request the court to issue a “Default.” A Default means that the spouse does not object to the request for a divorce, nor do they object to the terms you have requested. A default divorce is not absolute victory, because your spouse has six months to ask the court to set-aside the default. But, a default is a strong position to be in. Setting aside a default is not always easy.

When a Spouse Can Be Located

If a spouse can be located and (s)he refuses to sign the divorce papers, then:

That spouse will have to be served with a Complaint for Divorce, which will provide 21 days for that spouse to respond to the complaint (these are consecutive calendar days, not business days).
If the spouse responds (i.e., “answers” the complaint or files a counterclaim), the divorce will be a contested matter.

The court will then usually schedule a case management conference to give divorcing parties the opportunity to try to resolve the issues of their divorce without a trial.

If the case management conference cannot resolve the issues of the divorce, a trial will be scheduled for the case.
Sometimes, one spouse will avoid service of the divorce papers under the misconception that if they never get served, the other spouse cannot move forward with the divorce or legal separation. This myth is common. However, the court is empowered to allow the petitioner to effect service by publication when the court is satisfied that the respondent cannot be served with reasonable diligence personally or by mail.

If you know your spouse’s post office address and that his or her mail was being picked up from that box, then failure to attempt service by mail will prevent the court from allowing service by publication. The court will require proof that the respondent cannot reasonably be served personally or by mail and may require that a search of databases (such as voter registration rolls) be conducted. A search of databases often requires the assistance of a private investigator.

Should the court be satisfied that the respondent cannot be served by mail or in person, the court will order the summons to be published in a named California newspaper or, if the party resides out-of-state, in a named newspaper elsewhere. The summons is published once a week for four consecutive weeks and service is considered complete on the last day of publication.

Once service has been completed, the respondent will be deemed served. If the respondent spouse fails to respond within the 30-day requisite period, then the petitioner spouse can proceed with the divorce without the respondent’s input.

What If A Spouse Doesn’t Respond To A Divorce Petition

When a person files for divorce, the other spouse is served with the court papers by a qualified process server. The spouse who receives the divorce papers has a limited period of time in which to respond to the petition for divorce. The responding spouse must provide an answer to the court, providing required information and appropriate legal paperwork.

If one spouse doesn’t respond to a divorce petition, this does not mean that the dissolution of marriage will not go forward. However, a failure by the served spouse to respond to the paperwork can slow down the divorce process, make it more complicated to end the marriage, and leave the non-responding spouse without a say in how marital assets and custody are divided. Failing to respond to a divorce petition is a big mistake and everyone who receives papers from a process server should be sure to respond appropriately and on-time.

What Happens When A Spouse Doesn’t Respond To A Divorce Petition

In some cases, one of the two spouses will try to be non-responsive in order to slow down the process of ending the marriage. For example, a husband or a wife who does not want the divorce to go through may be late in submitting paperwork or requested documents to the court. This delay tactics can lead to legal consequences. It may be possible for the spouse who is willfully late in responding to be held in contempt of court.

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 Happens If I Do Not Sign The Divorce Papers?

What Happens If I Do Not Sign The Divorce Papers?

Even when it’s clear that a marriage is headed for divorce, one spouse might not be ready to take that final, legal step. Some spouses deal with their resistance—or anger—by avoiding or refusing to sign divorce papers. While those maneuvers might complicate the process, they won’t necessarily stop the divorce. Depending on the circumstances (and the rules in your state), you can usually get a final divorce even when your spouse won’t cooperate.

Do Both Spouses Have to Agree to Divorce?

If you want to end your marriage but your spouse doesn’t, you should still be able to get a divorce. States have procedures for dealing with spouses who hide out to avoid being served with the divorce petition, or simply won’t respond to the petition. But what if your spouse tries to frustrate your divorce efforts by refusing to agree to one of the “no-fault” reasons (or grounds) for divorce allowed where you live? In some states, the divorce process could be more complicated or simply time consuming when this happens. In some states, for instance, if your spouse denies that the two of you are incompatible, you will either have to prove one of the “fault” divorce grounds or be separated for a full year before you can get divorced.

Can You Get a Divorce Without Your Spouse Knowing?

Judges try to prevent one-sided divorce proceedings. This means you can’t go behind your spouse’s back to get a secret divorce. You must give your spouse notice of any divorce paperwork that you’ve filed with the court (as discussed below), so that your spouse at least has a chance to respond.

Can You Get Divorced If You Can’t Find Your Spouse?

When you file the initial divorce petition (sometimes called a complaint), you generally must arrange to have the petition and other paperwork delivered to your spouse through what’s known as “service of process.” But if you can’t locate your spouse, you may ask the court for permission to use another method for giving notice that you’ve filed for divorce. You’ll generally need to show that you made several serious attempts to find your spouse and serve the papers. A judge will decide whether to grant your request and which form of alternative service to allow—usually service by publication (publishing a notice in a newspaper).

When Can You Get a Default Divorce?

If you’ve served a divorce petition on your spouse (either through regular service or an alternative method), but your spouse hasn’t filed a response on time, you may request a default divorce. State and local rules vary. Typically, however, the process will go like this: You’ll file a request to enter a default along with a proposed divorce judgment after your spouse has not responded to the divorce petition within 30 days after service.
The court will set a hearing date and send notice to your spouse (unless there’s no known address where your spouse can be reached). At the hearing, the judge will review the paperwork you’ve filed, might ask you some questions, and will ultimately issue a ruling on your divorce.

The default hearing might be more involved in some states. In Utah, for instance, you must provide evidence at the default hearing to show that what you’ve requested in your divorce petition and proposed judgment—such as the details of the property division would be fair.

You should be aware of the pros and cons of default divorce. For example, most states give the defaulting spouse a certain amount of time to ask the judge to set aside the default judgment. So you could be in for a big headache if your spouse has a change of heart. If you’re considering this option, it would be wise to speak with an experienced divorce attorney first.

Note that some states—like Utah have a separate type of default divorce when your spouse has signed a written divorce settlement agreement but doesn’t file a response to the divorce petition. Unlike a “true” default divorce, the court will treat this type of case like an uncontested divorce.

What to Do If You’re Spouse Won’t Sign the Divorce Papers

Even the most amicable of divorces can be emotionally trying and tiring to navigate. But if your spouse is uncooperative and refuses to sign the divorce papers, it can make things even more difficult and frustrating for you. If you’ve made the decision to get a divorce, you’re probably ready to move ahead with it so that you can focus on getting a fresh start. Having your spouse dig in their heels and refuse to sign the documents might leave you feeling angry, confused, and desperate to move things along. If you’re in this situation, here’s what you need to know about how to proceed.

Why Aren’t They Signing?

First and foremost, it’s important to try to understand the reasons for your spouse refusing to sign. There can be many different motivations for this action. Are they still hoping to work things out and preserve your marriage? In these cases, sitting down and clearly explaining to your spouse that you’re not happy in your marriage any longer may be able to persuade them to sign.

Are they trying to use this refusal as leverage to get you to give up certain assets or custody of your children? Some people think that refusing to sign will give them power over their spouse, making the other party desperate enough that they’ll make sacrifices simply to move the divorce along. If you think this is their motivation, don’t give into their manipulations. Talk to your attorney about how to proceed.

Another common reason we see for a spouse to refuse to sign divorce documents is simply to make things more difficult for their spouse. Divorces can often bring out the worst in people, and a spouse may refuse to sign the paperwork for a while solely to cause trouble. While it’s a somewhat petty action, both spouses usually end up signing the paperwork in the end, as it’s clear that neither of them are happy.

Why do your spouse’s motivations matter? Simply put, knowing the reason behind their refusal to sign helps you to better understand the best way to respond to this action. Whether you need to just sit down and have a talk, wait it out, or draw a hard line with negotiations will be based on what your spouse is hoping to achieve by refusing to sign the paperwork.

Can You Still Get a Divorce?

If your spouse has refused to sign the divorce papers, you might be panicking and wondering if you can still get a divorce or if you’re stuck in the marriage because of their action. The good news is that most states, including Utah, are “no-fault” states; this means you don’t have to prove that one spouse has done something wrong that led to the divorce. Rather, you can simply state that you feel the marriage is unsalvageable and continue to file for divorce.
You and your divorce attorney will simply have to file a Petition for Dissolution of Marriage with the courts. This can be done without a spouse’s signature. After filing, the paperwork will be served to your spouse by a process server. Your spouse will then have 20 days to file a response with the court. At this point, it will be in their best interest to finally respond to your filing; if they don’t respond within 20 days, the court will rule it to be an uncontested divorce.

Assuming your spouse does not file a response, a judge will file a default hearing on your uncontested divorce. You must attend and request the divorce in person; the court will then ask you about matters regarding property division and child custody. Assuming your spouse has still refused to show, the court will generally grant the reasonable requests of whichever spouse has appeared at the default hearing. However, you should still speak to an attorney about these matters.

Possible Complications

So, if you can file a petition to end your marriage without your spouse’s signature, you might be wondering what all the fuss is about. Why bother trying to get your spouse to sign documents at all? The simple truth of it is that proceeding with a divorce is always easier when both parties are able to cooperate with one another. If your spouse is refusing to sign the paperwork they’ve been served, then odds are that they’re not going to be very cooperative in negotiating important facets of your divorce, such as division of assets, spousal support, and child custody issues. This can lead to a host of complications after you file your Petition for Dissolution of Marriage, so it’s incredibly important you have a skilled divorce attorney on your side.

Generally, if the other spouse refuses to sign the initial divorce papers, the person seeking the process can still file the divorce and proceed with the initial petition which does not require signatures from both parties. The case can start without the consent of each spouse no matter which person wants to halt it or cause problems.

Push Forward with the Divorce Process

Generally, the divorce papers do not need signatures from both parties to move forward. There is little need to ensure that the other spouse is in agreement to end the marriage legally. However, if both spouses are amenable to the process, it can permit both to progress through the divorce amicably. The initial petition is something that both spouses can review and make changes to or challenge to ensure that the judge will listen and understand what each person is wanting out of the divorce process such as marital property, child custody or visitation or what assets are to remain separate and not community property.

Legally Serving the Documents

When the other spouse refuses to sign the initial petition for the divorce, the person seeking the process will need to legally serve him or her the documents. Serving the papers can occur with anyone that is over the age of eighteen, but it often needs to happen through the Sheriff’s Office or with someone that is a licensed process server to ensure proper due process. If the other spouse is actively attempting to avoid the case by hiding or taking refuge in an unknown location, the other party can use the standard mail system. If nothing else works, the spouse seeking the divorce can use the public paper to publish a notice through permission of the court in the local area.
Using the Court

If the other spouse continues to remain combative, the process may proceed through the courts and with the judge. A failure to cooperate can still affect the case, but it may harm the other spouse instead. The court is still able to move the proceedings forward. If the other spouse decides not to attend the court for the case or even to respond to the divorce petition, the judge can enter a default judgment that will grant the divorce to the spouse seeking the process. In these situations, the judge may grant most of the requested relief, and the absent spouse has no right to contest this decision unless there is a valid reason for the absence and failure to respond.

Failure to Respond

The other spouse may fail to respond to the petition or the case, but he or she may file the respond and fail to participate. Any refusal to respond or cooperate with mandatory processes can lead to complications or even a negative outcome. The judge can issue penalties against the spouse and even hold him or her for contempt for his or her actions. This can continue until the person complies with any necessary actions or activity such as attending mediation or arbitration before the standard court case or litigation.

Final Divorce Documents

For any uncooperative behavior that continues, the court usually must progress through the case and determine if any issues remain outstanding and how to resolve them. The court will hold a trial in this event. Unlike the standard case where both parties work out the issues, the judge will decide all matters through state law and any guidelines that apply to the situation. This can support the spouse seeking the divorce, but there are some matters that may still provide something to the other spouse such as marital property and the division of assets.

Quicker Divorce Processes

When both parties are cooperative and willing to proceed through the divorce, the processes are generally faster and quicker to resolve. However, the divorce itself will usually still proceed forward even without the cooperation and assistance of the other spouse. When there is a hint or the possibility that the other party will remain in conflict and not want to sign papers or collaborate in any manner, it is important to contact an attorney to help with the divorce and any other processes.

Legal Support for Spouses that Refuse to Cooperate

In the divorce, the spouse may need a lawyer to file the petition and to proceed appropriately. This lawyer can also help if the other spouse is refusing to assist or cooperate to reach a beneficial outcome of the divorce.

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

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What Are The Factors That Courts Cannot Use To Decide Child Custody?

Divorce Lawyer

In most cases, the court prefers to award joint custody because children benefit from spending as much time with each parent as possible. When parents can work together to develop a parenting plan that benefits the entire family, the parents and the children are generally happier with the situation. However, what happens when one parent is unfit?

What Does It Mean To Be An Unfit Parent?

You do not need to be a perfect parent to have custody of your child. Courts recognize that some individuals may be better at parenting than other individuals. The court does not penalize parents for being imperfect. Judges consider the child’s best interests to resolve custody cases. However, that consideration is weighed against parental rights. A judge is not likely to deny custody or revoke parental rights if a parent is trying their best.

However, if a parent’s conduct could place a child in danger or cause them emotional or mental harm, the court might find that the parent is unfit. Being an unfit parent means that you are incapable of caring for your child and ensuring your child’s welfare.

Factors Judges Use To Determine If A Parent Is Unfit

When deciding whether a parent is unfit to have custody of a child, a judge considers the following factors and circumstances:
• The safety, health, and welfare of the child
• Evidence of a history of abuse or violence against the child, another child, the child’s other parent, or another romantic partner
• A parent’s history of substance abuse, including drugs and alcohol
• The amount and nature of contact between the child and each parent
Although the Family Code requires judges to consider the above factors, they may consider all relevant factors to decide whether a parent is fit to have custody. For example, the judge may order a 730 child custody evaluation to assist in their decision.
Things that the evaluator may consider when preparing a report and recommendation for the court include:
• Whether the parent sets age-appropriate restrictions for activities, television, bedtimes, etc.
• How well a parent handles conflict with the child and between the child and other individuals
• If a parent can understand and provide for a child’s needs
• The parent’s level of involvement in the child’s life
• A child’s feelings toward each parent
• Whether a parent has a history of mental illness or instability
• History of neglect or abandonment
• Whether the parent obtains medical and dental care for the child
• A parent’s ability to provide a safe, clean home, including adequate food and clothing for the child
• Allegations of parental alienation by either parent
Neither the court nor the evaluator has a presumption or preference for either parent. As stated above, custody is often granted jointly to both parents according to the child’s best interest. The court and the child custody evaluator objectively review the information and determine the child’s best interest based on a parent’s fitness to care for the child.

Evidence Used To Prove A Parent Is Unfit

Proving a parent is unfit can be difficult. A judge is not likely to strip a parent’s legal rights based on the allegations of the other parent. The parent alleging unfitness must have evidence to substantiate the allegations.

A court-ordered child custody evaluation can be extremely helpful. The evaluator is an independent investigator, so any evidence obtained by the evaluator may be viewed with great authority by the court.
Other evidence that could be used to prove that a parent is unfit might include:

• Testimony from counselors, therapists, teachers, coaches, and other people who are familiar with specific instances in which the parent displayed unfit behavior
• School and medical records
• Police reports detailing domestic violence
• Photographs and videos of the parent’s home
• Details of home visits and inspections
• Criminal records

The evidence proving a parent is unfit depends on the specific allegations made against the parent. A child custody lawyer with experience handling these types of custody cases will guide the parent through the process of gathering evidence and presenting a compelling case to the judge.

A judge may find that the allegations against the parent are unfounded.

If the judge finds that a parent is unfit, the judge may order sole custody to the other parent. Depending on the allegations, the court could order supervised or restricted visitation. In extreme cases, the court could involuntarily terminate the parental rights of an unfit parent.

Children feel the impact of divorce even in the most amicable situations. The process and outcome of determining custody, which is the rights and responsibilities of each parent in terms of child-rearing after separation, is easily the most impactful for children. In California, courts look at a variety of factors to determine custody and always keep a child’s best interest in mind.

Types of Child Custody in Utah

Like most states, Utah recognizes two forms of custody: physical custody and legal custody.

Physical Custody

Physical custody in Utah refers to the physical location of a child, specifically which parent a child lives with. In Utah, physical custody can be sole, primary, or joint.

Sole physical custody means a child lives with one parent and rarely, if ever, visits or spends time with the other parent.

Primary physical custody means a child lives with one parent most of the time and the other parent has visitation rights, such as every other weekend.

Joint physical custody means a child lives with both parents and goes back and forth based on an agreed-upon schedule approved by the court. Even with joint physical custody, families find it difficult to evenly split time because of work and school schedules. Children often spend more time with one parent than the other.

Legal Custody

Legal custody in Utah refers to a parent’s right to make decisions about the well-being and future of their child. Legal custody may be joint or sole, where either parents or only one parent makes significant choices about education, health, and welfare for a child. Some common decisions those with legal custody must make or decide with the other parent include:

• Type and location of childcare or school, such as will the child go to public or private school? What classes does the child need?
• Religious activities, such as attending church, going to a synagogue, or attending prayer service at a mosque
• Therapy needs to cope with divorce or other growing pains, including visiting a family therapist, child psychologist, or another mental health specialist
• Medical and dental needs including taking a child to a pediatrician, dentist, orthodontist, or another healthcare provider
• Participation in extracurricular activities such as sports, music lessons, school clubs, and summer camp
• Travel whether with the other parent, with other family members, or with friends
• Location the child calls home or the child’s primary place of residence

Factors that Judges Review Before Deciding Custody

Utah courts consider a wide array of factors when deciding child custody. Their decisions are guided by the best interests of the child and the idea that spending time with both parents benefits the child. Courts do not simply look at one factor but evaluate the entire situation to determine custody. Some of the most common factors that impact a child custody decision include:

Age and sex. It’s not true that courts automatically put a child with the same-sex parent when deciding custody, but sometimes sex factors into a custody decision depending on the age of the child. For example, infants who are still breastfeeding will need to be with their mother.

Health of the child. If a child has health issues that require regular medical treatment, the court may favor the parent who provides care when both parents are not involved.

Special needs. Courts carefully consider who provides needed care when children have special needs such as autism, cerebral palsy, or any other physical or mental health condition.

Physical and mental health of parents. A parent who has physical and/or mental health struggles might not be able to make the best decisions or provide care for a child.

Emotional ties with each parent. Courts hesitate to cut or damage emotional bonds between a child and parent unless they have a good reason.

Ability for parent to provide care. Those with physical custody, especially when it is not joint, need to be able to physically and financially provide care for a child.

Family history of domestic abuse. In the event of a proven family history of domestic abuse, it’s highly likely a judge will physically place a child with the abuser.

History of substance abuse. Much like physical and mental health, parents who struggle with addiction also struggle to provide the care their children need. Substance abuse issues don’t automatically mean a parent loses custody, but the court will take time to evaluate whether a parent has been through treatment and how long they have been sober.

Child abuse, including physical, emotional, and verbal abuse. Proven child abuse can lead to the non-abusive parent receiving sole physical and legal custody.

Child’s ties to school and community. If awarding custody to one parent negatively impacts a child’s ties to their community, it could factor into a judge’s decision.

Child’s wishes. All children have the right the express their wishes in terms of physical custody. Courts listen and especially take into account the wishes of an older child who demonstrates the maturity to make a decision about where to live.

Relationship with siblings. It’s highly unlikely a court will make a custody decision that separates siblings. Yet, if sibling relationships are damaging or abuse has been involved, they might factor into a Utah judge’s decision.

Interaction with extended family. Courts like to keep children near extended family when possible. Extended family also provides a support system for the custodial parent. Unless the court has a compelling reason, a judge is unlikely to make a custody decision that isolates a child from their grandparents and others.

Factors That Do Not Affect Your Child Custody Arrangement

When it comes to child custody, there are some pretty standard factors that a court looks at when deciding the nature of custody arrangements and child support. Knowing what these factors are can give you an advantage when fighting for full or shared custody.

Here are the things that a court will be looking at when deciding custody arrangements.

The Wishes of the Parents

The court does indeed take into account the wishes of each parent. Of course, when that becomes a problem is when both parents want full custody, or have not agreed on terms. Then, it is up to the court to decide what is best for the children based upon the other factors that they take under consideration. Often, if an amicable agreement, including child support, can be reached by both parents beforehand, the court will uphold that agreement unless there is some other factor that makes the court think that the arrangements are inappropriate.

The Wishes of the Children

Although the court does not put as much weight on what the child wants as what each parent does, or what the recommendations of social worker or other professional are, the court does take into consideration the child’s wishes. Children are not always the best judge of what is best for them and if the child wants to stay with one parent because they are more lenient or because they spoil them, the court will likely make a different recommendation. The court will also consider the age of the children before deciding how heavily to weight the wishes.

The Relationship between Children & Each Parent

The court does look at the very important relationship between each parent and each child. If one parent has been an absentee parent most of the time and the child has developed a much stronger relationship with the other parent, then it will likely be the absentee parent that is awarded visitation rather than custody and must pay child support and other obligations. The court will often use a professional social worker to determine how strong the relationship is between parent and child in order to make the best custody choices for the child possible.

Mental & Physical Health of Children & Parent

If one parent is physically disabled and will have a harder time taking care of the children, this is something that the court will look at. Although most of the time disabled parents are as capable of taking care of their children as a non-disabled parent, the court must look at this when deciding who will get full-time custody, which will have partial custody or visitation, or pay child support. This is the same – and even more so – with mental disabilities. If one parent is mentally disabled in some way or suffers from an emotional condition, the court may decide to award custody to the other parent instead.

The Willingness of Parents to Work with Each Other

Each parent will be interviewed to find out just how willing they are to work with the other parent. The court does not want to deprive children of either one of their parents, and if awarding custody to one parent will severely restrict the amount of time they get to spend with the other parent, this will be a strong determining factor. The best way to avoid this problem is to make sure that each parent realizes that the other parent has the right to see their children as well and try to work out an amicable settlement beforehand.

The Majority Caregiver Up Until This Point

The court will consider which parent has been providing for the child the most. This doesn’t just mean providing financially because financial support is often done through child support. The court will consider all types of care such as transportation, teaching, feeding and, in general, parenting. The court will also consider factors such as the household set-up – where one parent works and cannot spend as much time with the children as the parent who is not employed or is only employed part-time.

The Parent’s Living Accommodations & Ability to Provide for the Child

The court will always consider the parents ability to provide for the child when deciding custody and child support. The court will look at the living arrangements first and foremost, to find out if the parent has room for the children, if the home is in a safe neighborhood and if it is clean and well-managed. Also, the court will look at where the residence of the parents are, and how close they are to other family members, schools, and places where the children have developed a normal routine.

How Much of an Adjustment Will be Required

Obviously, divorce will cause some adjustments to be made but the court wants to make as little of an impact on the child’s life as possible. That’s why the court will look at how much the child will have to readjust if they live mostly with one parent or another, or even with shared custody.

Allegations & Actual Instances of Abuse or Neglect

The court will not only consider any actual incidents of abuse or neglect when it comes to awarding custody, but they will consider allegations of neglect or abuse as well. If one parent has made allegations that turned out to be false, the court will weigh this heavily when deciding how to arrange custody.

Free Consultation Divorce In Utah

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


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When To Call It Quits In A Marriage

When To Call It Quits In A Marriage

Like a roller coaster, all marriages have their ups and downs. One minute you’re flying high with excitement, the next minute you’re wishing you never got on the ride. When you first got married you likely never thought you would be contemplating all the reasons you should leave your spouse for good. Making this decision isn’t easy and you may find yourself going back and forth on the decision for months or even years. Divorce isn’t something to be decided lightly. There are many things to consider such as children, finances, and whether you’re truly ready to move on.

Here Are the Signs it May be Time to File for Divorce

You’ve Given it Genuine Consideration

Some people claim they want a divorce, but they don’t truly mean it. Many couples have threatened divorce in the heat of an argument but would be mortified if their spouse called their bluff. If you want divorce help for deciding if it’s time to end things, do this: imagine you are divorced. Really imagine it. This means that you will have to:
• Tell your children (if any) of your divorce and decide who gets them on which days
• Find a new place to live
• Tell your friends and family
• Handle your financial situation
• Potentially get a job
• Never get to spend time with this person again

Furthermore, imagine that your spouse has moved on and is in an intimate relationship with someone new. If the reality of these things does not upset you or outweigh your urge to leave, it may be time to say goodbye.

Consistent Infidelity

Research shows that the most common reason people get divorced is infidelity. And in recent years, online infidelity has been a strong citation in divorce paperwork. If you or your spouse is cheating on each other openly or in secret, with little or no remorse, it is definitely time to part ways.

Addiction is Involved

Addiction can create many messy problems in a marriage. This does not mean you must abandon your spouse because they have an addiction to drugs, gambling, sex, or alcohol if they are seeking help for their problems. However, if having these things in your marriage is causing you physical harm, financial ruin, or emotional turmoil, you may consider leaving.

You’ve Stopped Caring

What once charmed you about your partner now drives you crazy or leaves you feeling indifferent. You no longer desire to spend any time together, do not dress up or try to look nice for your spouse, and genuinely aren’t concerned with your spouse’s life.

There is No Partnership

Your marriage should be a partnership. You are taking on the world together, making decisions together, and always have each other’s back. If this is no longer the case in your marriage, you may have had a mutual drift in love for one another.

You’re Not Happy

No relationship is happy 100% of the time. However, the good times should outweigh the bad ones in a happy, healthy relationship. If you are no longer happy or have fallen into a serious depression because of your marriage, this is definitely an indication that something needs to change.

Your Relationship is Dangerous

One non-negotiable when it comes to your marriage is when there is verbal or physical abuse. Even if you are not being physically harmed, emotional abuse can be just as damaging to your health. One of the biggest pieces of divorce advice to consider is whether or not staying with your spouse puts you in emotional or physical danger.

Your Children Are Suffering

As a parent, it is your job to ensure that your children are growing up in a healthy, happy family atmosphere. Physical violence or mental abuse should not be tolerated. If you believe that your children are in physical or mental danger, you should seriously consider separating or divorcing your spouse.

You’ve Tried Everything Else

Divorce is not something that should be decided on a whim. It’s serious business that affects more than just you and your soon-to-be ex. The biggest piece of divorce advice for knowing when it’s time to file for divorce is when you know that you’ve exhausted all other options to try and save the relationship.

This may include, but is not limited to:

• Instituting a regular date night: Studies show that regular date night can improve the quality of a marriage. It improves communication, builds sexual chemistry, carries a playful novelty, helps couples reconnect, and offers a level of stress-reduction. All that in just one night a week!

• Addicts Seeking Help: The spouse who is addicted attends therapy or went to rehab in order to take control of their sickness and put the marriage first.

• Daily Gratitude and Attitude Changes: Doing little things like saying please and thank you or telling your spouse what you appreciate about them is important. Studies show that the highest predictor of increased relationship satisfaction is expressions of gratitude within the marriage.

• Seeking Therapy: Marriage counseling is the best way for couples to fix their relationship. A counselor will help them learn how to communicate, fight fair, problem solve, and create tools in which to deal with the issues in the relationship.

If you have tried all of these things and there is still no relief from the mutual unhappiness in your marriage, it is time to call it quits.

Proceeding with a divorce is one of the most difficult things a person can go through. Before you file for divorce, ensure that you have done everything possible to save your marriage. Seek counseling and try to reconnect. If all else fails, proceed with a divorce and take the necessary steps to protect yourself. Although divorce is common throughout Utah, the divorce process varies depending on the couple’s situation.

Short-term marriages without children or property typically result in a less complex and time-consuming divorce than long-term marriages with significant property entanglements, marital debt, and minor children. Additionally, divorcing couples who work together to negotiate the terms of the divorce (child custody, child support, property division, debt allocation, and spousal support) will experience a less expensive and less stressful divorce than couples who can’t agree or refuse to work together.

Filing the Divorce Petition

Whether both spouses agree to the divorce or not, before any couple can begin the divorce process, one spouse must file a legal petition asking the court to terminate the marriage. The filing spouse must include the following information:

• a statement which informs the court that at least one spouse meets the state’s residency requirements for divorce

• a legal reason or grounds for the divorce, and

• any other statutory information that your state requires.

Residency requirements vary depending on where you live. States usually require at least one spouse to live in the state anywhere from 3 months to 12 months, and in the county where the spouse files at least 10 days to 6 months before filing the petition. Divorcing spouses must meet the state’s residency requirement before the court can accept the case. Grounds for divorce vary from state-to-state. However, all states offer divorcing couples the option to file a no-fault divorce. No-fault divorce is a streamlined process that allows spouses to file a divorce petition without listing a specific reason or placing blame on either spouse. If your spouse committed marital misconduct or caused the breakup, some states allow parties to claim “fault” for the divorce, like adultery or neglect. If you’re unsure whether you should file a no-fault or fault divorce, contact an experienced family law attorney in your state for guidance.

Asking for Temporary Orders

Courts understand that the waiting period for divorce may not be possible for all couples. For example, if you are a stay-at-home parent that is raising your children and dependent on your spouse for financial support, waiting for 6-months for the judge to finalize your divorce probably seems impossible. When you file for divorce, the court allows you to ask the court for temporary court orders for child custody, child support, and spousal support. If you request a temporary order, the court will hold a hearing and request information from each spouse before deciding how to rule on the application. The judge will usually grant the temporary order quickly, and it will remain valid until the court orders otherwise or until the judge finalizes the divorce. Other temporary orders may include a request for status quo payments or temporary property restraining orders. Status quo orders typically require the breadwinner to continue paying marital debts throughout the divorce process. Temporary property restraining orders protect the marital estate from either spouse selling, giving away, or otherwise disposing of marital property during the divorce process. Restraining orders are usually mutual, meaning both spouses must follow it or risk being penalized by the court. If you need a temporary order but didn’t file your request at the time you filed for divorce, you’ll need to apply for temporary orders as quickly as possible. When you file for divorce, the court allows you to ask the court for temporary court orders for child custody, child support, and spousal support.

Serve Your Spouse and Wait for a Response

After you file the petition for divorce and request for temporary orders, you need to provide a copy of the paperwork to your spouse and file proof of service with the court. Proof of service is a document that tells the court that you met the statutory requirements for giving a copy of the petition to your spouse. If you don’t properly serve your spouse, or if you neglect to file a proof of service with the court, the judge will be unable to proceed with your divorce case. Service of process can be easy, especially if your spouse agrees with the divorce and is willing to sign an acknowledgment of service. However, some spouses, especially ones that want to stay married or make the process complicated, can be evasive or try anything to frustrate the process. The easiest way to ensure proper service is for the filing spouse to hire a professional who is licensed and experienced in delivering legal documents to difficult parties. The cost is usually minimal and can help prevent a delay in your case. If your spouse retained an attorney, you could arrange to have the paperwork delivered to the attorney’s office. The party who receives the paperwork (usually titled “defendant” or “respondent”) must file an answer or reply to the divorce petition within a prescribed amount of time. Failure to respond could result in a “default” judgment against the non-responding spouse, which can be complicated and expensive to reverse. The responding party has the option to dispute the grounds for divorce (if a fault divorce), the allegations in the petition, or assert any disagreements as to property, support, custody, or any other divorce-related issues.

Negotiate a Settlement

In cases where the parties have differing opinions on important topics, like child custody, support, or property division, both spouses will need to work together to reach an agreement. Sometimes the court will schedule a settlement conference, which is where the parties and their attorneys will meet to discuss the status of the case. The court may schedule mediation, which is where a neutral third-party will help facilitate discussion between the spouses in hopes to resolve lingering issues. Some states require participation in mediation, while others do not. However, mediation often saves significant time and money during the divorce process, so it’s often a good route for many divorcing couples.

Divorce Trial

Sometimes negotiations fail despite each spouse’s best efforts. If there are still issues that remain unresolved after mediation and other talks, the parties will need to ask the court for help, which means going to trial. A divorce trial is costly and time-consuming, plus it takes all the power away from the spouses and puts it in the hands of the judge. Negotiations and mediation sessions allow the couple to maintain control and have more predictable results than a divorce trial, so it’s best to avoid a trial if possible.

Finalizing the Judgment

Whether you and your spouse negotiated throughout the divorce process, or a judge decided the significant issues for you, the final step of divorce comes when the judge signs the judgment of divorce. The judgment of divorce (or “order of dissolution”) ends the marriage and spells out the specifics about how the couple will allocate custodial responsibility and parenting time, child and spousal support, and how the couple will divide assets and debts. If the parties negotiated a settlement, the filing spouse’s attorney typically drafts the judgment. However, if the couple went through a divorce trial, the judge will issue the final order. If you are going through a divorce, talk to a divorce attorney to figure out your options.

Free Initial Consultation with a Divorce Law Firm

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


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Divorce Kearns

Divorce Kearns

A divorce decree is the final step in the court proceeding for your divorce. It contains important information about the court’s decision. A divorce decree is not the same thing as a divorce certificate, and the two documents have different purposes. The divorce certificate is issued by your state for record-keeping purposes, as opposed to the divorce decree, meaning a final, enforceable order by the court that you and your spouse must follow. It resolves all of the issues that were part of your divorce.

When Is a Divorce Decree Issued In Kearns, Utah

A divorce case can drag on for months (and even years in some cases!), so finally getting to the end of the process is a long-awaited step. After you have had your trial, or after you and your spouse have agreed on and submitted a settlement to the court, the court makes a final decision. If you have a trial, the judge weighs all of the evidence and testimony and makes decisions related to granting the divorce: custody, alimony, child support, and property division. All of these decisions are written out in the divorce decree. The decree is a binding legal court order that says what you and your spouse must do moving forward. If you settle your case, your settlement is submitted to the court in writing or it is spoken into the record at the courtroom. The judge then reviews what you have agreed on and decides if it is fair and in accordance with the law. If so, the court issues a decree that includes all the terms of your settlement. This becomes a binding court order.

When Is a Divorce Final?

Your divorce is final on the day the court signs the decree. You normally will receive it a few days later, since it is sent to your attorney, who will then send you a copy. You are legally divorced as of the date the decree is signed. This means you become a single person on that date because your marriage is legally over.

What Is a Divorce Certificate?

A divorce decree is the complete court order ending your marriage, with all the details about how property is divided, how you will share time with your children, and what, if any, child support is granted. It also states why the marriage is being dissolved. If there are any problems in the future with your ex not following the court order, you will refer to the decree, since it states what each is required to do. If there is noncompliance, you can go back to court to enforce the terms of the decree.
A divorce certificate is not a court document. It is a document issued by your state for record-keeping purposes. It includes the parties’ names and says when and where the divorce was granted. It does not include the myriad other personal details included in a divorce decree. This certificate is used in much the same way you would use a birth certificate or marriage certificate, in the event that you need to prove you are divorced from someone. If you seek to change your name on your driver’s license or with Social Security after the divorce, you may be asked to show a portion of the divorce decree to confirm you have authorization for the name change. While the divorce certificate is generally accepted as proof that you’re divorced, the name change itself is ordered in the divorce decree; the name change may not appear on the certificate. If you need to provide proof that the divorce occurred, for any reason other than a name change, then showing the divorce certificate should be sufficient.

Complications and Income Disparities

In some cases, a husband may unnecessarily complicate a divorce action, thereby requiring the wife to incur additional attorney fees. For example, the husband purposefully undervalues assets or hides income to impact property division and spousal support. A judge may award the wife attorney fees because she incurred additional costs that would not have been necessary had the husband not engaged in bad faith and wrongdoing. Income disparities are another factor a judge may take into account when considering a wife’s motion for payment of attorney’s fees and costs. For example, if a wife has little to no income or assets or if she stayed at home to raise a family while her husband worked, she likely does not have the money to hire an attorney. A judge may order her husband to pay her attorney fees so that she is guaranteed sound legal representation during the divorce process.

Access to Property

In every divorce, your marital assets—the property that you and your spouse acquired during the marriage are distributed as equally as possible. Because of this, the judge can order that the husband pay the wife’s attorney fees as an advance on the amount of property she will receive in an equitable distribution of assets. When considering a motion to request payment of attorneys’ fees, a judge may consider the totality of a wife’s income vs. assets and expenses, the complexity of the case, and the attorney’s fees already incurred. In most cases, if a wife has access to property or income, a judge is not likely to order the husband to pay for her attorney fees. If a wife has the ability to pay an attorney for advice, a judge typically leaves that financial obligation to her and does not place it on the husband unless there are other factors to influence that decision, such as a gross disparity in assets or whether the husband has been hiding assets or otherwise unnecessarily prolonging the process. Also, the court does not award the payment of attorney fees and costs in a divorce action entirely on gender. If a wife earns more income than her husband, has access to greater assets, or unnecessarily complicates the divorce action, a judge could order that the wife pay the husband’s costs for the divorce. A divorce proceeding can be expensive, especially if the parties do not agree on issues such as child support, alimony, custody, and property division. Each divorce action is unique, and divorce laws vary by state. A judge considers a motion for attorney fees and costs based on the facts in the case and the state’s specific divorce laws.

Benefits of Filing For Divorce First?

Many divorce attorneys argue that there really is no advantage to filing for dissolution (divorce) first, however, we believe that it depends on your individual circumstances. In general, there are certain financial and legal benefits to being the first to file for divorce.
The advantages of filing for divorce first can include:
• More Planning: You get to plan in advance and take your time selecting a lawyer, rather than having to scramble to find a lawyer to meet with you and file a Response within 30 days of being served.
• Emotional Preparation: You have time to be mentally and emotionally prepared for the financial cost of divorce.
• Choice of Court: You have the first choice of which court will hear your case. Depending on where you live, having your case heard in one courthouse over another could be a significant advantage, especially if one spouse lives in a state with favorable laws regarding asset division or spousal support laws.
• Timing: You are in control of the timeframes and when to file for divorce by choosing a timing that works for you.
• First at Trial: As the petitioner, you get the first argument at trial, and the ability to reply to the defendant’s response providing you with the final word as well.
• Asset Protection: By initiating the divorce process, you have the opportunity to start protecting community assets, and to see if your spouse may be hiding marital assets.
• Prevent Stalling: It prevents possible stalling by the other party.
One of the biggest advantages to filing for divorce first is you are given adequate opportunity to consult with various attorneys before choosing one. You are basically putting yourself in an offensive position instead of a defensive position. Ideally, you and your spouse will conduct the process of physically separating and pursing dissolution proceedings in an organized, amicable, planned, and orderly fashion. If you anticipate any conflict about child custody or property division, then the sooner you seek legal counsel, the better prepared you will be to navigate any issues that arise.

Filing For Divorce In Kearns, Utah

Kearns, Utah is a “no-fault” divorce state. This means that the only reason you need to file for divorce is “irreconcilable differences.” You must live in Kearns, Utah to file for a divorce there, and the divorce must be filed in the county in which you or your spouse lives.
Once the divorce is finalized, the divorce judgment will determine:
• The date the marriage ends.
• Who will get custody of the children and when the other parent will see them.
• Who will pay child support and how much.
• Who will pay the children’s health insurance and medical expenses.
• Who will pay the couple’s debts.
• How the couple’s property will be divided.
• Whether one spouse will pay spousal support (alimony).
During the process of dissolving your marriage, the court may order you to pay alimony payments after the divorce is final. Payments are not required during the separation period. The requirement to make alimony payments may be either temporary or permanent, depending on the circumstances. Once a divorce is final, however, a court will only alter or change an alimony decree if the circumstances of the parties change. They will not create a new alimony agreement after a divorce is final where no alimony agreement exists.

The Rules for Alimony In Kearns, Utah

The rules for alimony or spousal support vary slightly depending upon the state in which the couple lives. However, as a general matter, alimony can be ordered to be paid by either spouse. This means a wife could pay alimony to her ex-husband or vice versa. Whether or not alimony will be ordered from one spouse to another depends on the ability of each spouse to provide himself with a standard of living similar to that enjoyed during the course of the marriage. In other words, if one spouse either doesn’t work or makes significantly less money than the other, the wealthier spouse may have to provide maintenance/support money to the less-wealthy spouse. An alimony order may be either temporary or permanent, which means that the alimony could have to be paid indefinitely after a divorce or on a limited basis.
• Permanent alimony is ordered if it is believed by the court that the spouse receiving the payments is unlikely to ever be able to provide himself with close to the same income as the party ordered to make the payments. This is appropriate when there is a large gap in employability or education (especially if the less-employable party contributed to shouldering the educational expenses of the party making more money) or if one party cannot work because of health or other reasons.
• Temporary alimony is ordered if the court thinks that the party receiving payments will be able to improve his income, if only given a little time to do so. A court will also look at a number of other factors aside from the respective incomes of the parties, including the length of the marriage and each party’s contribution to the marriage.

Remarriage and Alimony in Kearns, Utah

When a couple gets divorced in Kearns, Utah the court will sometimes order one spouse to pay the other “alimony,” or payments of financial support. When the spouse who receives alimony payments (the “supported spouse”) gets remarried, however, he or she may no longer need financial support. Also, the spouse paying alimony (the “paying spouse”) will likely want to end alimony payments once the ex has a new spouse in the picture. In Kearns, alimony, also called “spousal support” usually takes the form of monthly payments from one ex-spouse to the other; either for a specific period of time or until certain events occur. Alimony may also be paid in a lump sum, by a transfer of property, or by direct payment of other expenses (such as a mortgage). Courts will award alimony to provide monetary assistance to a low-earning or unemployed spouse, based on each spouse’s financial circumstances. Many types of alimony or short term and have a clear end date. Some couples spell out a date upon which alimony will end in their marital settlement agreement and/or court order. If there is no mention of a termination of alimony in a settlement agreement or final court order, then alimony may continue until the death of either party.

Impact of Remarriage on Alimony in Kearns, Utah

In Kearns, the obligation to pay alimony automatically ends when the supported spouse gets remarried. Even if the paying spouse voluntarily continues to pay alimony after the other spouse gets remarried, there is no legal obligation to continue paying alimony. If the supported spouse’s remarriage is annulled (because the remarriage was void due to the new spouse’s bigamy, coercion, insanity, and so on), the court can decide whether alimony should begin again, based on what is fair to both spouses. If your agreement states specifically that alimony will continue to be paid regardless of whether the supported spouse gets remarried, you will not be able to modify or end alimony. Also, if your agreement provides for alimony in a lump sum or transfer of property, the supported spouse’s remarriage will have no effect on the alimony agreement.

Termination or Modification of Alimony in Kearns, Utah

When a supported spouse gets remarried, alimony ends. However, if a supported spouse is simply living with someone else, or has an increase in income, the paying spouse needs a court order to lower or end alimony payments. If you are paying alimony and your ex-spouse is living with someone else or has increased income, you should ask your ex-spouse to agree to lower or end alimony by agreement. You can sign an agreement and file it with your divorce court to modify or terminate alimony. If you would like to modify or terminate alimony, but your ex-spouse won’t agree, you should file a motion to modify or terminate alimony with the court that granted your divorce. You’ll need to state how circumstances have changed and why that warrants a modification or termination of alimony. For example, your spouse’s increase in income, your spouse’s lowered needs, or your spouse’s living with another person in a romantic relationship may all qualify as a “change in circumstances” that the court can use to lower or end your alimony payments.

Impact of Cohabitation on Alimony

Under Utah law, there is a rebuttable presumption that alimony can be lowered, and possibly ended, when the supported spouse is cohabiting with a person of the opposite sex. The rebuttable presumption means that the court will presume alimony should be reduced or terminated unless the supported spouse can prove a continuing need for alimony payments after he or she begins living with someone of the opposite sex. If the supported spouse will not agree to lower or end alimony, the paying spouse can file a motion asking the court to order the change. The court won’t consider the income of the person with whom the supported spouse is living when deciding whether to lower or end alimony, only the supported spouse’s new financial circumstances. Cohabitation is more than a roommate relationship; it usually requires a personal romantic relationship. However, if the supported spouse is living in a roommate situation, the court may still decide that his or her need for support has decreased, and may still modify alimony. If you have additional questions, consult with a Kearns family law attorney.

Kearns UT Divorce Lawyer

When you need to get divorced in Kearns, 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
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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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Utah Divorce Code 30-3-4: Pleadings, Decree, Use of Affidavit and Private Records.

(1) (a) The complaint shall be in writing and signed by the petitioner or petitioner’s attorney.

(b) A decree of divorce may not be granted upon default or otherwise except upon legal evidence taken in the cause. If the decree is to be entered upon the default of the respondent, evidence to support the decree may be submitted upon the affidavit of the petitioner with the approval of the court.

(c) If the petitioner and the respondent have a child or children, a decree of divorce may not be granted until both parties have attended the mandatory course described in Section 30-3-11.3, and have presented a certificate of course completion to the court. The court may waive this requirement, on its own motion or on the motion of one of the parties, if it determines course attendance and completion are not necessary, appropriate, feasible, or in the best interest of the parties.

(d) All hearings and trials for divorce shall be held before the court or the court commissioner as provided by Section 78A-5-107 and rules of the Judicial Council. The court or the commissioner in all divorce cases shall enter the decree upon the evidence or, in the case of a decree after default of the respondent, upon the petitioner’s affidavit.

(2) (a) A party to an action brought under this title or to an action under Title 78B, Chapter 12, Utah Child Support Act, Title 78B, Chapter 13, Utah Uniform Child Custody Jurisdiction and Enforcement Act, Title 78B, Chapter 14, Uniform Interstate Family Support Act, Title 78B, Chapter 15, Utah Uniform Parentage Act, or to an action to modify or enforce a judgment in the action may file a motion to have the file other than the final judgment, order, or decree classified as private.

(b) If the court finds that there are substantial interests favoring restricting access that clearly outweigh the interests favoring access, the court may classify the file, or any part thereof other than the final order, judgment, or decree, as private. An order classifying part of the file as private does not apply to subsequent filings.

(c) The record is private until the judge determines it is possible to release the record without prejudice to the interests that justified the closure. Any interested person may petition the court to permit access to a record classified as private under this section. The petition shall be served on the parties to the closure order.

What Is Considered a Public Record?

Government records, from court cases to property deeds, are usually public records – that is, filed with or kept by a government agency and available for inspection by members of the general public. For instance, if you’re interested in buying a vacant home on your street, you can obtain the owner’s name by searching the county’s land records at your local registrar or county clerk’s office sometimes online since these documents are public records. However, certain records or information may be blocked from public view because it meets a privacy or confidentiality exemption under state or federal law.

Accessing Public Record

Generally, a public record is a document filed with or kept by a city, county, state or federal government agency in the ordinary course of business that is viewable by the public. Although public records are often documents, they can also be such things as maps, recordings, films, photographs, tapes, software, letters and books. Court cases are a common example of a public record. In some cases, this information can be retrieved online.

Public and Private Document

Public Documents: Public Documents are those documents which are authenticated by a public officer and subsequently which is made available to the public at large for reference and use. Public documents also contain statements made by the public officer in their official capacity, which acts as admissible evidence of the fact in civil matters. These documents are also known as public records as these are issued or published for public knowledge.

Private documents: Private documents are those documents which are prepared between persons for their usual business transactions and communications. These documents are kept in the custody of the private persons only and are not made available to the public at large. Certified copies of the private documents are generally not considered as evidence unless there is proof of the original copy is provided.

Documents forming the acts or records of the acts:
• Of sovereign authority
• Of official bodies and tribunals
• Of public officers, legislative, judiciary and executive of any part of India or of the commonwealth, or of a foreign country.
• The public record kept in any State of Private document

Examples of Public Documents

These documents are considered to be public documents which are open to the public at large:
• Electoral Roll of all the districts
• Census Report of India
• Town Planning Reports by the Department of State Development
• Village Records of the villages
• Public records keeping the original private documents and not the copy
• Records of National Bank
• Birth and Death Register
• Charge Sheet
• Confessions recorded by a magistrate
• Sanction to prosecute
• Record of Information
• Notice

Private Documents

Private Documents are those documents which are made by an individual for his/her personal interest under his/her individual right. These documents are in the hands of the individual to whom the public document belongs to and is not made open to the general public for inspection. Certified copies of the private documents are not admissible in court unless the proof of original document is submitted. Example: Correspondence between persons; matter published in newspapers, books; deed of the contract; memorandum; sale deed.

Difference between Public and Private Documents

• Public Documents are made by a public servant in discharge of his/her public duties while Private Documents are made by an individual for his/her personal interest under his/her individual right.
• Public Document is available for inspection to the public in public office during the appointed time after payment of fixed fees while Private Document is in the hands of the individual to whom the document belongs to and is not available for inspection to the general public.
• Public Documents are proved by Secondary Evidence while Private Documents are proved by original i.e. Primary Evidence.

What Is a Final Divorce Decree?

A divorce decree is the final step in the court proceeding for your divorce. It contains important information about the court’s decision. A divorce decree is not the same thing as a divorce certificate, and the two documents have different purposes. The divorce certificate is issued by your state for record-keeping purposes, as opposed to the divorce decree, meaning a final, enforceable order by the court that you and your spouse must follow. It resolves all of the issues that were part of your divorce.

When Is a Divorce Decree Issued?

A divorce case can drag on for months (and even years in some cases!), so finally getting to the end of the process is a long-awaited step. After you have had your trial, or after you and your spouse have agreed on and submitted a settlement to the court, the court makes a final decision. If you have a trial, the judge weighs all of the evidence and testimony and makes decisions related to granting the divorce: custody, alimony, child support, and property division. All of these decisions are written out in the divorce decree. The decree is a binding legal court order that says what you and your spouse must do moving forward. If you settle your case, your settlement is submitted to the court in writing or it is spoken into the record at the courtroom. The judge then reviews what you have agreed on and decides if it is fair and in accordance with the law. If so, the court issues a decree that includes all the terms of your settlement. This becomes a binding court order.

When Is a Divorce Final?

Your divorce is final on the day the court signs the decree. You normally will receive it a few days later, since it is sent to your attorney, who will then send you a copy. You are legally divorced as of the date the decree is signed. This means you become a single person on that date because your marriage is legally over.

What Is a Divorce Certificate?

A divorce decree is the complete court order ending your marriage, with all the details about how property is divided, how you will share time with your children, and what, if any, child support is granted. It also states why the marriage is being dissolved. If there are any problems in the future with your ex not following the court order, you will refer to the decree, since it states what each is required to do. If there is noncompliance, you can go back to court to enforce the terms of the decree.
A divorce certificate is not a court document. It is a document issued by your state for record-keeping purposes. It includes the parties’ names and says when and where the divorce was granted. It does not include the myriad other personal details included in a divorce decree. This certificate is used in much the same way you would use a birth certificate or marriage certificate, in the event that you need to prove you are divorced from someone. If you seek to change your name—on your driver’s license, or with Social Security—after the divorce, you may be asked to show a portion of the divorce decree to confirm you have authorization for the name change. While the divorce certificate is generally accepted as proof that you’re divorced, the name change itself is ordered in the divorce decree; the name change may not appear on the certificate. If you need to provide proof that the divorce occurred, for any reason other than a name change, then showing the divorce certificate should be sufficient.

Private Records – Why Search for them?

We live in an era where we can find information about people we know from social media outlets, as well as different websites where individuals write details about themselves. However, there are people out there who easily falsify information about themselves, and tell people lies very easily. So, the best way to find credible information about others is to tap into reliable sources of information, such as people’s records.

What is found in People Records?

U.S. authorities gather accurate data about residents of the country that is kept in special files for decades. Official records in each state contain valuable information about people, and among these records, you can find the following details:
• Birth records
• Marriage record
• Divorce records
• Aliases
• Employment history
• Criminal records
• Arrest records
• Contact information
• Mugshots
• Social media data
All these records and details can help you discover if someone is lying to you, and if they may have bad intentions, such as committing fraud, harming you physically, harming you emotionally, or taking advantage of you in any way by telling you lies and gaining your trust.
Most divorce decrees cover the topics of alimony, division of debt, and the division of property along with the messier, litigious issues of custody, visitation, and child support, if applicable.

Alimony

Sometimes referred to as spousal support and/or spousal maintenance, alimony is the amount of money that one spouse is ordered to pay the other. Very basically, this amount depends on whoever made more money during the marriage and the roles you both played. But there are lots of other circumstances a judge may also consider, including your prior standard of living, plus your health, age, and many other mitigating factors.

Division of Property

This aspect only comes into play when you and your spouse are unable to agree on who gets what. In order to rule on the division of marital property, a judge will identify, categorize (marital versus non-marital), and assign value to your combined assets. How your property is divided and split among you and your ex depends on state laws: Most states exercise equitable distribution, which dictates that any money and property you’ve both acquired belongs to whichever spouse earned and/or bought it. Community property states view that all income and assets earned during the marriage equally belong to both parties.

Division of Debt

The division of debt happens similarly to how property is divided. Before you’ve officially split, you and your ex have the option to pay everything off before filing for divorce or to decide whoever is responsible during the divorce negotiations (this usually happens whenever debt is too great to be paid off before the divorce). To divide debt, the court must determine which spouse incurred it and who benefited most. Your final divorce decree might also contain other contingencies specific to your personal circumstances, such as a name-change authorization or the assignation of the party that’s ordered to pay taxes and/or attorney’s fees, for example.

Before You Sign

Above all, your final divorce decree needs to be accurate (grammatically and otherwise) and contain certain language and contingencies that protect your legal interests. Your decree also needs to hold up if, for whatever reason, you need to modify or appeal the document at a later date. And if for whatever reason, your ex doesn’t comply with what was set forth in the decree, you can take them back to court to enforce the terms.

Modifications

Once you’ve signed it, modifying a final divorce decree can be extremely difficult, regardless of the reason. The only way to change it may be via an appeal, which can be a long, drawn-out process that requires stringent proof that your circumstances meet certain criteria, which are dependent on the state in which you live. If, however, you feel that you signed the decree under duress or felt threatened if you didn’t sign, your attorney may be able to petition the court for a new hearing.

A final decree of divorce is archived in the vital records office of your courthouse, in the county in which you obtained your divorce. You’ll want to keep this document for your records and you should also reread it after it’s signed and entered into court records. In most situations, the court clerk or your attorney will mail you a copy of your final decree. If this doesn’t happen, or you need an extra copy, request the document (either in-person or in writing) directly from your county clerk’s office.

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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Utah Divorce Code 30-3-3: Award of Costs, Attorney And Witness Fees — Temporary Alimony.

(1) In any action filed under Title 30, Chapter 3, Divorce, Chapter 4, Separate Maintenance, or Title 78B, Chapter 7, Part 1, Cohabitant Abuse Act, and in any action to establish an order of custody, parent-time, child support, alimony, or division of property in a domestic case, the court may order a party to pay the costs, attorney fees, and witness fees, including expert witness fees, of the other party to enable the other party to prosecute or defend the action. The order may include provision for costs of the action.

(2) In any action to enforce an order of custody, parent-time, child support, alimony, or division of property in a domestic case, the court may award costs and attorney fees upon determining that the party substantially prevailed upon the claim or defense. The court, in its discretion, may award no fees or limited fees against a party if the court finds the party is impecunious or enters in the record the reason for not awarding fees.

(3) In any action listed in Subsection (1), the court may order a party to provide money, during the pendency of the action, for the separate support and maintenance of the other party and of any children in the custody of the other party.

(4) Orders entered under this section prior to entry of the final order or judgment may be amended during the course of the action or in the final order or judgment.

Temporary alimony or spousal support is an order for support that comes during a divorce, legal separation or even an annulment case after one party has filed such a request with the court. A hearing is set after a motion document called a “Request for Order” is filed with the family court. For these financial motions, it is a requirement that each party file an Income and Expense Declaration to show their respective financial status. Temporary spousal support is usually ordered to “preserve the status quo”, meaning to try and maintain some semblance of what the parties had going during the marriage. The court is granted a significant amount of discretion, or authority, to order or deny spousal support. Temporary spousal support is also called pendente lite spousal support, which means an order made during the pendency of a case.

How Is Temporary Spousal Support Calculated?

Utah courts are allowed to determine temporary spousal support by looking at a “guideline” calculator that most family law attorneys have in their office. The court can look at the guideline calculator if they want (and every judge or commissioner does), but they are not required to look at the calculator. They are required to consider the needs of the supported party and the supporting party’s ability to pay. Those are the only two factors that the trial court judge is bound to consider. Some calculators can be found online, but we would caution against relying on those calculators. The factors that are input into the calculator are extremely important and are the subject of many litigation arguments. We can also save you some time: typically the calculator will say that if the supported spouse has little or no income, temporary alimony will be somewhere between 30-35% of the supporting spouse’s gross income. Obviously, great care has to be taken in making sure the court uses the correct figures when determining temporary support.

Can Temporary Spousal Support Be Modified?

Yes. Temporary spousal support is an order that is made during the pendency of a case based on the payer’s ability to pay and the recipient’s need for money. While there are many other factors that the court can consider when making a temporary alimony order, those are the primary concerns for the court. Generally, orders that are made a part of a judgment are only modifiable based on a showing of changed circumstances. Usually those changes have to be substantial. When a temporary order is made and one party seeks to modify the order, technically they do not have to prove that there has been any change of circumstances warranting a change. Practically speaking, however, a party would not want to bring a motion to modify a temporary order without there being some change of circumstances. The family court judge will not be pleased with motion requesting the same information already ruled on.

Can The Court Use The Guideline Spousal Support Calculator To Determine Permanent Alimony?

No. The statutory and case law is clear that the court is not permitted to review or rely upon the “guideline” spousal support calculator in determining permanent spousal support under Family Code 4320. In fact, family court judges are very careful not to allow either party to submit computer spousal support calculations for consideration because the Court of Appeals will reverse the trial court’s judgment. Many times, there is already a computer calculation for spousal support that is calculated during the pendency of the divorce case for temporary spousal support, which is part of the court record and the court is permitted to review the court file and that document for reference. Even so, most, if not all judges look at the “guideline” formula for temporary spousal support to get an idea about what that number is and to gauge the net income of each party and to gather certain tax information. However, the court is explicitly not allowed to rely on the calculator for determining permanent spousal support.

How Is Permanent Spousal Support Calculated?

Permanent spousal support is not really “calculated” since the court is not allowed to use a calculator. The court is required to list and consider each and every factor to determine the amount and duration of spousal support, if any. Generally, these are the standard of living during marriage, employment, income, earning capacity, health of each party, and so forth. In practice, permanent spousal support judgments are typically slightly lower than temporary spousal support orders.

Difference between Temporary and Permanent Spousal Support

• Temporary alimony is ordered during a case, permanent alimony is ordered at the end of a case.
• Temporary spousal support can be ordered during an annulment (i.e. nullity) case, but permanent spousal support cannot be ordered in an annulment case.
• The judge is allowed to use a computer to determine temporary alimony, but is not allowed to use the calculator to determine permanent alimony.
• The only consideration necessary for temporary spousal support is the supported party’s need and the other party’s ability to pay, while there are about a dozen factors that the court must consider when ordering permanent alimony.
• Temporary spousal support is ordered after a party files a motion (i.e. RFO) for temporary support, while permanent alimony is part of a “judgment” that occurs at trial or upon agreement of the parties.
• Permanent alimony may be factored into the IRS’ “recapture” rules, which means that it may not be taxable income to the recipient and deductible to the paying spouse even though that’s what was intended. These IRS rules look at whether certain agreements between parties may have too much cross-over between alimony and property division, to put it very simply. These types of IRS rules really wouldn’t apply to temporary spousal support.
• Temporary spousal support ends until the court revises the order either by making a new order or after permanent spousal support is ordered. Permanent spousal support might not have an end date attached to it.
Process of Obtaining a Temporary Alimony
First, you need to inform the court that you are in need of a temporary alimony order and file the necessary paperwork with the help of a temporary alimony lawyer in the family court. Once the courts reviewed the financial documents, it may hold hearings for the order. Courts have wide discretion is granting or denying the temporary alimony order. It is crucial to document all the financial materials and collect them as evidence for the hearing. The more clearly you can articulate your financial and marital situation the better the judge can decide on your case.

What Factors do Courts Consider in Awarding Temporary Alimony?

A judge may look to several factors in determining the temporary alimony. These include:
• Length of the marriage;
• Age of the parties;
• Couple’s standard of living throughout the marriage;
• Each spouse’s mental and physical condition;
• The financial needs and financial resources;
• Each spouse’s ability to become self-sufficient through obtaining higher education;
• Each spouse’s contribution to marriage, financial and nonfinancial;
• Is the amount too burdensome on the spouse to meet their own financial means; and
• Ability to work while providing for any dependent children.

Additionally, the courts may look to determine if it was a “no fault” divorce and if there was any agreement on the alimony between the couples. However, laws regarding temporary spousal support vary throughout the states. Courts need to consider the financial capabilities of the spouse to set the temporary alimony amount. Most states require that the divorcing couples file and exchange preliminary financial disclosures. Generally these forms provide sufficient information about each spouse’s financial situation. This includes any assets, debts, income and expenses. Temporary alimony orders may include a temporary award of the marital home. Furthermore, it is within the court’s discretion to award temporary alimony even if the spouse is self-sufficient.

How Are Temporary Alimony Orders Enforced by the Courts?

There are many reasons a spouse may have difficulty paying the court ordered amount of alimony. It could be due to medical, employment or the ability to work issues. After determining the reason for the delay in payment, the couples can come to an agreement to modify the alimony agreement to best serve their situations. However, if your spouse does not have a viable reason and is avoiding the payments, you have the option to get the court involved. The court can order a spouse to make orderly payments for the spousal support. The courts have discretion in imposing fines and in ordering another form of punishment for the spouses that are failing to follow court orders. States vary in the remedies provided to each spouse receiving alimony and some of them include:
• Contempt: Failing to pay spousal support voluntarily can lead to more fines and possible jail time;
• Income Withholding: Courts can order the spouse’s employer to withhold the income check or send it directly to the supporting spouse;
• Writ of Execution: Judge can order a portion of the spouse’s assets to be awarded to the supporting spouse; and
• Judgment and Interest: Courts can also issue money order judgments for large amounts of overdue alimony.
Can Temporary Alimony Orders Be Modified?
Courts can modify the temporary alimony orders based on a showing of changed circumstances. These changes need to be substantial and warrant a modification in the order. The most important consideration for temporary alimony orders, is that the courts determine supported party’s need and the other party’s ability to pay.

How Long Does Temporary Alimony Last?

Temporary alimony ends once the case is completed. In other words it terminates once the divorce is finalized. The purpose of the temporary alimony is to ensure the self-sufficiency of the supported spouse and to allow adequate time needed. However, some temporary alimony orders can carry over to the final judgment of the divorce, transforming into the permanent alimony order. Any family going through a divorce is enduring tough times. The spouses are also faced with bills and expenses for rearing their children.

Should I Hire a Lawyer for Help with Temporary Alimony Issues?

Financial burdens can pile up and create complicated situations for the families seeking divorce. For more information and guidance on how to file for a temporary alimony order or to determine your eligibility, it would be useful to seek out a family law attorney to assist with the process. Your attorney can provide you with advice and representation during the legal process.

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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Utah Divorce Code 30-3-1

Utah residents are subject to Utah state and U.S. federal laws. Federal laws apply in Utah as they do across all 50 states. In addition to the U.S. Constitution, which is the supreme law of the U.S., federal laws include statutes that are periodically codified in the U.S. Code. Federal laws also include decisions by courts that interpret federal laws. Finally, Federal laws include regulations issued by federal administrative agencies to implement federal laws. The state of Utah also has its own state laws. Utah state laws include the Utah Constitution, laws passed by the Utah legislature and periodically codified in the Utah Code, and decisions by courts that interpret Utah laws. The original version of the Utah Constitution, which was drafted in 1895, remains substantially in effect. This document was the eighth constitution drafted in Utah, which could not become a state until it abandoned the practice of polygamy. The Constitution was notably progressive in granting women the right to vote well before the U.S. Constitution granted this right. Article XXIII provides the processes for amending the Constitution.

First, an amendment proposed in the legislature will appear on a ballot if two-thirds of each chamber of the legislature votes in its favor. Alternatively, a proposal for a constitutional convention will appear on a ballot if two-thirds of each chamber of the legislature votes in its favor. The Utah Code contains the laws passed by the Utah legislature. These laws and the provisions of the Utah Constitution are often interpreted by the Utah Supreme Court and the Utah Court of Appeals. The federal Utah District Court also issues decisions that may affect Utah residents. The Tenth Circuit Court of Appeals holds the authority to review decisions by the Utah District Court. Sometimes the U.S. Supreme Court may review a case that has been appealed from the Tenth Circuit or from the Utah Supreme Court.

Utah Divorce Code 30-3-1: Procedure, Residence and Grounds.

(1) Proceedings in divorce are commenced and conducted as provided by law for proceedings in civil causes, except as provided in this chapter.
(2) The court may decree a dissolution of the marriage contract between the petitioner and respondent on the grounds specified in Subsection (3) in all cases where the petitioner or respondent has been an actual and bona fide resident of this state and of the county where the action is brought, or if members of the armed forces of the United States who are not legal residents of this state, where the petitioner has been stationed in this state under military orders, for three months next prior to the commencement of the action.
(3) Grounds for divorce:
(a) Impotency of the respondent at the time of marriage;
(b) adultery committed by the respondent subsequent to marriage;
(c) willful desertion of the petitioner by the respondent for more than one year;
(d) willful neglect of the respondent to provide for the petitioner the common necessaries of life;
(e) habitual drunkenness of the respondent;
(f) conviction of the respondent for a felony;
(g) cruel treatment of the petitioner by the respondent to the extent of causing bodily injury or great mental distress to the petitioner;
(h) irreconcilable differences of the marriage;
(i) incurable insanity; or
(j) when the husband and wife have lived separately under a decree of separate maintenance of any state for three consecutive years without cohabitation.

(4) A decree of divorce granted under Subsection (3) (j) does not affect the liability of either party under any provision for separate maintenance previously granted.
(5) (a) A divorce may not be granted on the grounds of insanity unless:
(i) the respondent has been adjudged insane by the appropriate authorities of this or another state prior to the commencement of the action; and
(ii) the court finds by the testimony of competent witnesses that the insanity of the respondent is incurable.
(b) The court shall appoint for the respondent a guardian ad litem who shall protect the interests of the respondent. A copy of the summons and complaint shall be served on the respondent in person or by publication, as provided by the laws of this state in other actions for divorce, or upon his guardian ad litem, and upon the county attorney for the county where the action is prosecuted.
(c) The county attorney shall investigate the merits of the case and if the respondent resides out of this state, take depositions as necessary, attend the proceedings, and make a defense as is just to protect the rights of the respondent and the interests of the state.
(d) In all actions the court and judge have jurisdiction over the payment of alimony, the distribution of property, and the custody and maintenance of minor children, as the courts and judges possess in other actions for divorce.
(e) The petitioner or respondent may, if the respondent resides in this state, upon notice, have the respondent brought into the court at trial, or have an examination of the respondent by two or more competent physicians, to determine the mental condition of the respondent. For this purpose either party may have leave from the court to enter any asylum or institution where the respondent may be confined. The costs of court in this action shall be apportioned by the court.

When to Submit Evidence about Why You Divorced

You also might want to submit a personal statement or other evidence regarding the circumstances of your divorce in order to prove that it was not your fault that the marriage ended. For example, you can provide evidence of:
• No-fault divorce: If the divorce petition was initiated due to irreconcilable differences or a mutual understanding, you should state that the divorce was a no-fault action and the differences that led to the end of your marriage (disagreements about whether to have children, where to live, or anything else that is relevant).
• The divorce having been your ex-spouse’s fault: If you alleged grounds for divorce or annulment such as adultery, abandonment, impotency, or imprisonment, you should submit a copy of the divorce or annulment petition that alleged those fault grounds or documents that tend to prove those grounds. You can also provide affidavits from people who knew you and your ex-spouse attesting to the fact that the divorce was the fault of your former spouse.
• Having attempted marriage counseling: If you or your ex-spouse initiated marriage counseling sessions prior to your divorce, you can provide invoices for those sessions or evidence that you tried to convince your former spouse to go to a marriage counselor. This could include emails to your ex-spouse or evidence that you contacted a counselor during your marriage (emails to a counselor or a letter from a counselor stating that you requested information from his or her office). This also helps prove that the marriage was bona fide.

Grounds for divorce

Before filing for divorce, you should first consider the grounds for divorce, as these will need to be specified as part of the divorce process. Currently, the five possible grounds for divorce are: adultery, unreasonable behavior, desertion, living apart for more than two years (with agreement) and living apart for more than five years (without agreement). In practice, divorcing couples who both want to get divorced will often decide to choose the reason of ‘unreasonable behavior’ as a catch-all ground.
• Adultery: The ground of adultery can be used where your husband or wife has had sexual intercourse with someone else of the opposite sex (so if your husband had sex with a man this does not count as adultery). It must be actual sexual intercourse – not just a kiss or ‘heavy petting’. If you decide to file for divorce on grounds of adultery, you must do so within six months of discovering that your spouse cheated on you. However, you cannot give adultery as a reason if you lived together as a couple for 6 months after you found out about it. You can only use the ground of adultery if you are the ‘innocent’ party (i.e. your husband or wife slept with someone else – not if you committed adultery). However, if you both had sexual relationships with other people, either husband or wife can file for divorce.

• Unreasonable Behavior: There are essentially two distinct situations where the ground of unreasonable behavior is given in a divorce petition: firstly where unreasonable behavior has actually occurred – and secondly where none of the other grounds for divorce apply (e.g. where husband and wife have simply drifted apart and no longer wish to remain married). Although unreasonable behavior can constitute serious accusations including domestic violence or drunkenness, it also encompasses rather vague issues such as lack of support in maintaining a household. In reality, there is a very low standard when it comes to unreasonable behavior, but some factual reason must be given and an incident of ‘unreasonable behavior’ must have occurred less than six months prior to filing for divorce. It should be noted that, if your husband or wife has become intimate with someone else but has not had sexual relations with them, although adultery cannot be given as a ground for divorce, unreasonable behavior can be used. Similarly, if your spouse has a sexual relationship with a member of the same sex, this does not count as adultery but can count as unreasonable behavior.
• Living apart for more than 2 Years (with agreement): If you and your spouse have lived apart for at least two years, and you both agree to get divorced, this ground can be used.
• Living apart for more than 5 Years (without agreement): If you have not been living with your husband or wife for at least five years, you can file for divorce on this ground, even if your spouse does not agree to divorce.
• Desertion: If your husband or wife left you, without your agreement or a good reason and with the intention of ending the relationship, it may be possible to use the ground of desertion when filing for divorce. They must have deserted you for over two years within the last two and a half years and you can have lived together for up to six months during this period. In practice, this is a rarely used ground.

What Happens in a Divorce?

Although divorce is common throughout the United States, the divorce process varies depending on the couple’s situation. Short-term marriages without children or property typically result in a less complex and time-consuming divorce than long-term marriages with significant property entanglements, marital debt, and minor children. Additionally, divorcing couples who work together to negotiate the terms of the divorce (child custody, child support, property division, debt allocation, and spousal support) will experience a less expensive and less stressful divorce than couples who can’t agree or refuse to work together.
Step One: Filing the Divorce Petition
Whether both spouses agree to the divorce or not, before any couple can begin the divorce process, one spouse must file a legal petition asking the court to terminate the marriage. The filing spouse must include the following information:
• a statement which informs the court that at least one spouse meets the state’s residency requirements for divorce
• a legal reason—or grounds—for the divorce, and
• any other statutory information that your state requires.

Step Two: Asking for Temporary Orders

Courts understand that the waiting period for divorce may not be possible for all couples. For example, if you are a stay-at-home parent that is raising your children and dependent on your spouse for financial support, waiting for 6-months for the judge to finalize your divorce probably seems impossible. When you file for divorce, the court allows you to ask the court for temporary court orders for child custody, child support, and spousal support. If you request a temporary order, the court will hold a hearing and request information from each spouse before deciding how to rule on the application. The judge will usually grant the temporary order quickly, and it will remain valid until the court orders otherwise or until the judge finalizes the divorce. Other temporary orders may include a request for status quo payments or temporary property restraining orders. Status quo orders typically require the breadwinner to continue paying marital debts throughout the divorce process. Temporary property restraining orders protect the marital estate from either spouse selling, giving away, or otherwise disposing of marital property during the divorce process. Restraining orders are usually mutual, meaning both spouses must follow it or risk being penalized by the court.

Step Three: Serve Your Spouse and Wait for a Response

After you file the petition for divorce and request for temporary orders, you need to provide a copy of the paperwork to your spouse and file proof of service with the court. Proof of service is a document that tells the court that you met the statutory requirements for giving a copy of the petition to your spouse. If you don’t properly serve your spouse, or if you neglect to file a proof of service with the court, the judge will be unable to proceed with your divorce case.

Step Four: Negotiate a Settlement

In cases where the parties have differing opinions on important topics, like child custody, support, or property division, both spouses will need to work together to reach an agreement. Sometimes the court will schedule a settlement conference, which is where the parties and their attorneys will meet to discuss the status of the case. The court may schedule mediation, which is where a neutral third-party will help facilitate discussion between the spouses in hopes to resolve lingering issues. Some states require participation in mediation, while others do not. However, mediation often saves significant time and money during the divorce process, so it’s often a good route for many divorcing couples.

Step Five: Divorce Trial

Sometimes negotiations fail despite each spouse’s best efforts. If there are still issues that remain unresolved after mediation and other talks, the parties will need to ask the court for help, which means going to trial. A divorce trial is costly and time-consuming, plus it takes all the power away from the spouses and puts it in the hands of the judge. Negotiations and mediation sessions allow the couple to maintain control and have more predictable results than a divorce trial, so it’s best to avoid a trial if possible.

Step Six: Finalizing the Judgment

Whether you and your spouse negotiated throughout the divorce process, or a judge decided the significant issues for you, the final step of divorce comes when the judge signs the judgment of divorce. The judgment of divorce (or “order of dissolution”) ends the marriage and spells out the specifics about how the couple will allocate custodial responsibility and parenting time, child and spousal support, and how the couple will divide assets and debts. If the parties negotiated a settlement, the filing spouse’s attorney typically drafts the judgment. However, if the couple went through a divorce trial, the judge will issue the final order.

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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