In all divorce cases, couples must provide the court with a legal ground to terminate the marriage. Although there are different ways to apply for a dissolution of marriage (divorce), every case requires the applicant to list a specific reason for the request. Some states allow parties to file for a fault divorce, which is where you claim that your spouse’s behavior during the marriage caused the relationship to fail. Acceptable grounds for fault divorce vary depending on where you live, but the most common include adultery, drug or alcohol abuse, or abandonment.
All states permit couples to request a no-fault divorce, meaning that neither spouse is individually responsible for the breakup. Typically, no-fault divorces are based on irreconcilable differences. In these cases, couples need to prove to the court that despite your best efforts, there are too many issues in the relationship for reconciliation to be possible. The most appealing factor of no-fault divorce is that spouses can ask the court to terminate their marriage without the need for finger pointing or mud-slinging. Many states also offer a divorce based on a separation for a specific period of time.
Utah and No-Fault Divorce
If you’re not interested in airing your dirty laundry in a public courtroom setting, no-fault divorce is probably the best option for ending your relationship. Utah courts understand that many people, primarily parents, want to preserve what’s left of their bond after a divorce, so it allows couples to pursue a divorce using its no-fault procedures.
For divorcing couples to be successful, the parties will need to explain to the court that their marriage has suffered irreconcilable differences. Judges don’t usually make it a habit of questioning the motives behind a no-fault divorce, so if you are willing to testify, under oath, that you and your spouse can’t work things out, a judge will grant your divorce. If you can’t prove irreconcilable differences to the court, you can also apply for a no-fault divorce if you and your spouse have lived separate and apart from each other for a minimum of three years.
No-fault divorce is by far the most popular method of ending a marriage, but for some couples, it’s not the right choice. As an alternative, Utah gives couples the option of petitioning the court for a divorce based on a spouse’s bad conduct during the marriage.
The acceptable reasons for a fault divorce in Utah include:
• impotency at the time of the marriage
• adultery by either party
• willful desertion for more than one year
• habitual drunkenness
• conviction of a felony
• cruel treatment to the extent of causing bodily injury or great mental distress, and
• willful neglect to provide the standard necessities of life.
Spouses may also file for divorce based on one spouse’s incurable insanity.
Unlike no-fault divorce, which only requires one spouse to testify that the marriage has suffered irreconcilable differences, if you accuse your spouse of marital misconduct or incurable insanity you will need to present evidence, like witness testimony or medical records, to prove to the court that your allegations are true.
For example, in one case, a husband filed for divorce based on his wife’s mental cruelty toward him. The couple had been married for over 16 years, but the wife suffered some medical issues that caused her personality to change. The husband provided testimony that painted a picture of mental cruelty by his wife, which was enough for the court to approve his request. The wife appealed, stating that she didn’t intend on being cruel to her husband and that the judge should have denied the request for a fault divorce, but because the husband proved his allegations with evidence, the appeals court upheld the decision by the judge.
Other Requirements for Divorce
Like most states, Utah has a residency requirement that you must meet before you can file for divorce. Couples must demonstrate that the filing party has been a resident, continuously, for a minimum of three months. Additionally, there is a 90-day waiting period before the court can hold a hearing for your divorce. This waiting period was created by legislators to provide couples with a cooling off period, which may or may not assist the spouses in making meaningful, divorce-related issues, like property division and spousal support. Either party can ask the court to waive this waiting period. The person requesting a waiver would need to file a motion (request) with the court and provide the judge with extraordinary circumstances for their application.
We Have Minor Children, Does that Change Anything?
Yes. Utah law is unambiguous that if a divorcing couple has minor children from the marriage, the court can’t finalize the divorce until each parent has attended a mandatory course for divorcing parents and presented a certificate of completion to the judge. The court can, on its own or if one parent makes a motion, waive this requirement, but this doesn’t typically happen unless the couple can prove that the class isn’t necessary, appropriate, or feasible.
How to File a Divorce in Utah
In Utah or elsewhere, divorce for any married couple will accomplish two things: severing the marital relationship, and dividing assets and debts. If they have been married for a significant length of time and one of them will be unable to be self-supporting after the divorce, the issue of alimony may also arise. If there are minor children, they will also need to resolve issues of child custody and support.
Residency and Where to File
In order to file for divorce in Utah, the party filing for divorce must be a resident of Utah and the county for at least 3 months. The case must be filed in the District Court in the county where the residency requirement is met.
The simplest procedure is an uncontested divorce where you and your spouse reach an agreement about the division of your property, and, if you have any children, what arrangements will be made for them. You begin the divorce procedure by filing a Complaint for Divorce, along with various supporting documents. For an uncontested divorce, one of these documents will be a marital settlement agreement outlining the division of assets, and your agreement regarding any children. These documents are filed with the court, and copies of them are provided to your spouse. You will attend a court hearing, at which time the judge will make sure that all of your paperwork is in order, perhaps ask you a few questions, and enter your Decree of Divorce.
Collaborative Divorce. Utah offers this process where each party hires a lawyer to assist them in trying to reach an agreement on all issues. There may also be a facilitator involved, to help focus the discussion. It is similar to mediation. Both parties must agree to this process, and either may stop it at any time. Any agreement will be signed by the parties and submitted to the court to be incorporated into a judgment or decree.
Grounds for Divorce
Grounds for divorce are legally recognized reasons to get a divorce. This is the justification for severing the marital relationship. Utah, like most states, has what are commonly called no-fault grounds for divorce, and several traditional fault-based grounds. To get a no-fault divorce in Utah you need to state in the Complaint for Divorce that “there are irreconcilable differences in the marriage,” or the parties have been living separate and apart without cohabitation for 3 years under a judicial decree of separation.”
The fault-based grounds for divorce are: impotence, adultery, willful desertion for more than 1 year, willfully neglecting to provide the plaintiff with the common necessities of life, habitual drunkenness, conviction of a felony, cruel treatment to the extent of “bodily injury or great mental distress,” and incurable insanity. However, in most cases, there is no reason to use any of these, since they add complexity to the process by requiring proof.
A divorce involves dividing property and debts between you and your spouse. Utah divorce law provides that all property is marital property, regardless of how or when it was acquired. Absent an agreement of the parties, the judge is directed to divide the property “equitably.”
Alimony in Utah
Absent an agreement of the parties regarding alimony, the court is directed by Utah alimony law to consider the following factors in determining alimony:
• the financial condition and needs of the party seeking alimony,
• the earning capacity or ability to produce income of the party seeking alimony,
• the ability of the party paying alimony to provide support,
• the length of the marriage,
• whether the party seeking alimony has custody of minor children requiring support,
• whether the party seeking alimony worked in a business owned by the payor,
• whether the party seeking alimony directly contributed to any increase in the payor’s by paying for education, or enabling the payor to attend school during the marriage,
• the parties’ standard of living, and
• the fault of either party.
“Fault” means committing adultery; knowingly and intentionally causing or attempting to cause physical harm to the other party or minor children, knowing and intentionally causing the other party or minor children to reasonably fear life-threatening harm, or substantially undermining the financial stability of the other party or the minor children. If the marriage is of short duration, and there are no children, the court may restore the parties to their condition at the time of marriage. Alimony is limited to a period of time equal to the number of years of marriage, unless the court finds extenuating circumstances. Alimony terminates upon the death or remarriage of the party receiving alimony, or upon evidence that the party receiving alimony is cohabitating with another person.
Child Custody in Utah
If you and your spouse have any minor children, there will have to be a custody determination, which basically comes down to figuring out how the children’s time will be divided between the parents, and how decisions will be made. If you and your spouse can reach an agreement on custody, it will be accepted by the judge unless it is determined not to be in the child’s best interest. If you cannot reach a custody agreement, the judge will decide the issue, after considering all relevant factors, including:
• each party’s past conduct and demonstrated moral standards,
• which party is most likely to act in the best interest of the child, including allowing frequent and continuing contact with the other party,
• the extent of bonding between each party and the child,
• whether a party has intentionally exposed the child to pornography or harmful material,
• whether the physical, psychological, and emotional needs and development of the child will benefit from joint legal and physical custody,
• each party’s ability to give priority to the welfare of the child, and reach shared decisions,
• whether each party is capable of encouraging a relationship between the child and the other party,
• whether both parties participated in raising the child before the divorce,
• the geographical proximity of the parties,
• the preference of the child, if the child is of sufficient age and capacity to reason,
• each party’s maturity and willingness and ability to protect the child from any conflict between the parties,
• the past and present ability of the parties to cooperate and make decisions, and
• any history of, or potential for, child abuse, spouse abuse, or kidnaping.
There is a presumption in favor of joint custody, unless it is shown not to be in the child’s best interest, or there is such physical distance between the parties so as to make joint decision-making impractical. In evaluating whether to award joint custody, the court is to consider.
Child Support in Utah
Child support is determined by reference to the Utah Child Support Guidelines. Information about child support may be found on the Utah Courts website. A divorce may not be granted until at least 90 days after the Complaint is filed. There is no provision for a name change in connection with a divorce. Filing a divorce can be a complex process, but if you and your spouse can agree on the terms of the divorce you may be able to save time. Following these steps will help you get started with your divorce.
Fault divorces are not as common. When a spouse requests a divorce based on some fault of the other spouse, the “matrimonial offenses” that are commonly given as grounds for divorce are:
• Abandonment for a certain length of time
• Prison confinement
• Physical inability to have sexual intercourse, if this condition existed before the marriage and was hidden
• The other spouse has inflicted emotional or physical pain (cruelty)
A key difference between fault and no-fault divorce is that spouses filing a fault divorce are typically not required to live apart for a specific period of time before filing.
In some states that recognize fault divorce, establishing fault can result in a larger distribution of the marital property or granting of alimony to the spouse that was not at fault. In other states that require or allow fault divorce, fault is not a factor in the property settlement decision at all.
These two characteristics make a fault divorce more attractive to some people.
Fault Divorce: Comparative Rectitude
When both spouses seek a fault divorce and can both prove the other spouse was at fault, the court decides which one is least at fault. That party will be granted the divorce. This is called “comparative rectitude.” This doctrine was created to address the problem of courts granting neither party a divorce if they were both at fault. Courts have a policy of not forcing people to stay married if they don’t want to be.
Fault Divorce: Defenses
Unlike a no-fault divorce, a spouse can object to a fault divorce. They must disprove the fault by presenting a defense. These are common fault divorce defenses:
• Connivance is an absolute defense to adultery. Connivance alleges that the complaining spouse agreed to and even participated in the adultery or created the opportunity by enticing someone to seduce their spouse.
• Condonation is a claim that the other spouse knew about the problematic conduct, forgave that conduct, and resumed the marital relationship. This is typically used to defend against an adultery accusation.
• Recrimination is when the complaining spouse is equally at fault or engaged in similar conduct. For example, if both spouses had affairs, neither one would be able to use adultery as grounds for a fault divorce.
• Provocation is when one spouse provoked the other spouse to act in a certain way. For example, where one spouse abuses the other spouse, that may have forced that spouse to leave the marital home. The abusive spouse would not be able to use abandonment as grounds for divorce, since it was his or her abuse that caused the other spouse to leave.
• Collusion refers to an agreement between the spouses to fabricate a grounds for divorce. If one of the spouses changes his or her mind, collusion could be raised to lessen the original grounds for the fault divorce.
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