When a couple divorces in Utah, they must divide their marital property equitably. If they’re not able to negotiate a settlement, they’ll have to ask the court to divide the marital property. The rule about equitable division doesn’t mean the division must be equal. Instead, the court has wide latitude to decide on a fair division based on each spouse’s contribution to the marital property and on each person’s projected future needs.
Marital Property and Separate Property
In a divorce, the distribution of property depends on which property belongs to the marriage – marital property and which property belongs to each of the two spouses – separate property. Generally, marital property is property acquired or earned during the marriage, including earned income. Property used for the benefit of the marriage, even if it started out as separate property, may also be considered marital property. Separate property includes anything that belonged to one spouse before marriage and was kept separate throughout the marriage. It could also include property given only to one spouse during the marriage, like a gift made to the husband alone or an inheritance that the wife received from a member of her family. The most common types of property divided at divorce are real property like the family home, personal property like jewelry and clothing, and intangible financial assets like income, dividends, and benefits. All of the marital property must be divided between the spouses when the marriage ends, and marital debts must also be divided. The spouse who owns separate property gets to keep that property–it can’t be awarded to the other spouse.
Equitable Division of Property
Rather than rely on a hard and fast set of rules when splitting property between spouses, judges in Utah have discretion to consider a variety of factors unique to each marriage. Despite the court’s relative freedom to decide what is fair, it should always consider the length of the marriage and how the spouses acquired the marital property. It should also look at the conditions each spouse will face alone after the divorce, such as medical needs, and childcare costs. Each spouse’s level of education and earning potential are also relevant. Judges may divide property unequally after taking these factors, and others, into account. In Utah, courts consider alimony as part of the equitable division of marital property. Alimony is a payment from one spouse to the other to help the recipient spouse maintain a lifestyle as close as possible to the standard of living the parties enjoyed during the marriage and specifically, at the time they separated. If it is more equitable, the court might base alimony on the standard of living at the time of trial.
The court also has the option to base alimony on the standard of living at the time of marriage if the marriage was short and there are no children. To determine the amount of alimony due, the court may consider either spouse’s fault in the deterioration of the marriage. The court also evaluates the recipient spouse’s financial resources, earning capacity, and whether that spouse worked in a business owned or operated by the obligated spouse (the one who has to pay). Additionally, the court looks at the obligated spouse’s ability to pay, the length of the marriage, who has custody of the children, and whether the obligated spouse’s earning capacity increased because the recipient spouse contributed to education or training during marriage. If one spouse is at the threshold of a major change in income because of the collective efforts of both spouses, that change also will be a factor in how the court divides the marital property and in the alimony award. Conversely, for a short marriage, the court could attempt to put the spouses back where they started as newlyweds, in terms of financial resources. Generally, alimony payments can last only as long as the number of years the marriage existed.
Marital Settlement Agreements
Throughout the process, divorcing spouses have opportunities to agree between themselves on what is a fair division. They can decide to sell certain assets and divide the proceeds, while allowing each spouse to keep certain other assets. Whatever agreements the spouses make, they can submit a marital settlement agreement to the court and a court will generally accept the agreement without further involvement. On the other hand, if the spouses cannot work together, or if there are certain items of property that they cannot agree on, then the court will decide for them. While somewhat controversial, prenuptial agreements have proven invaluable to countless divorcing couples. Prenuptial agreements, also called “prenups” or premarital agreements, outline how the division of property is to be handled in the event of a future divorce.
This includes real property (like land and houses), personal property (like furniture and jewelry), and pension plans and retirement benefits (like 401(k)s and defined contribution plans). In short, prenups act like blueprints. In cases where no premarital agreement exists to guide the division of assets, the court will determine how the assets and possessions should be divided, just as it would for marital property. In fact, even if you do have a prenup, there are certain areas where the court must nonetheless intervene. For example, prenuptial agreements are not allowed to include any stipulations regarding child support, healthcare coverage for children, or the costs of childcare (like daycare, food, and clothing). If you’re thinking about filing for divorce or have already been served with divorce papers, it’s important to seek legal help from an experienced attorney who can guide you through the process.
Getting Started With Your Divorce
If you’re thinking of ending your marriage, it would be wise to first familiarize yourself with the basic concepts of divorce. First things first—you need to make sure you meet your state’s residency requirements before you file your petition (formal written request) for divorce. If you don’t, you won’t be able to start the divorce process. Each state sets its own laws regarding residency. The main factor in residency requirement laws is the period of time you’ve lived within the state where you plan to get divorced. Some states will let you file for divorce without a waiting period, if you currently live in the state. Others may require you to be a resident for anywhere up to a year before you can proceed with a divorce.
Grounds for Divorce
Divorce “grounds” is the legal reasons on which you’re basing your request that the court end your marriage. Grounds fall into two categories: fault-based and no-fault. Fault-based grounds are those that require you to prove that your spouse did something wrong, which caused the divorce. Some typical grounds in this category are adultery, extreme cruelty (physical or mental), and desertion. Today, there aren’t many benefits to filing for a fault-based divorce. However, if your state views fault as a factor in determining alimony or division of marital property, it’s something to consider. No-fault divorce is primarily based on “irreconcilable differences” or the “irretrievable breakdown of the marriage.” In short, these basically mean that you and your spouse can’t get along anymore, and there’s no reasonable prospect that you’ll reconcile. No-fault has become the avenue of choice in most divorces.
There are various reasons for this. Because you don’t have to prove your spouse did something wrong, there’s typically less anxiety and tension during the divorce process. This is a big benefit, especially if there are children involved. Also, when you don’t have to fight about fault, the divorce may move more quickly. And, less arguing almost always translates into lower legal fees.
Child Custody and Parenting Time (Visitation)
Custody is frequently a hotbed issue in a divorce. But it’s important to note that custody isn’t the all-or-nothing proposition many people think it is. In deciding custody and parenting time issues, the law requires judges to think in terms of “the best interests of the child.” To the degree possible, that usually means having both parents actively involved in the child’s life. In light of this, “joint legal custody” is often the ideal outcome of a custody case. In this scenario, both parents have a say in the most important decisions in a child’s life, such as education, religious upbringing, and non-emergency medical treatment. “Sole legal custody” means only one parent is the decision-maker, but that’s much more the exception than the rule today. Joint legal custody doesn’t necessarily translate into “joint physical custody,” where a child lives with each parent anywhere from a few days a week to literally six months a year. For any number of reasons, joint physical custody may not be feasible or advisable. In that case, a court will award physical custody to one parent (“sole physical custody”), but normally provide the other parent with a parenting time schedule. A typical parenting schedule will have a parent spending time with the child one or two evenings a week, and every other weekend, perhaps with extended time during the summer. But judges will look at parenting time on a case-by-case basis, and try to tailor a plan that best suits both parents’ schedules. Both parents are responsible for financially supporting their children. All states utilize child support guidelines to calculate how much money a parent must contribute. The amount of support owed is primarily based on a parent’s income, as well as the amount of time the parent will be spending with the child. Child support will usually also encompass other elements, such as a child’s medical needs (like health insurance and medical bills not covered by insurance).
Alimony in a Divorce
The laws regarding alimony, which is also known as “spousal support” or “maintenance,” have evolved over the years. The current trend is away from lifetime or permanent alimony, which is now typically reserved only for long-term marriages, generally considered to be anywhere from 10 to 20 or more years, depending on your state. Another type of short-term spousal support is “reimbursement” alimony, often awarded in short marriages where one spouse contributed to the other’s pursuit of a college or graduate school degree. The theory is that contributing spouses deserve to be repaid for the effort and costs they expended in furthering the other spouse’s education.
Some common factors a court considers when awarding alimony are:
• a spouse’s actual need, and the other spouse’s ability to pay
• the length of the marriage
• each spouse’s age and health (both physical and emotional)
• each spouse’s earning capacity and level of education
• parental responsibilities for the children
• the division of marital property between the spouses, and
• income available to either spouse through investment of that spouse’s assets.
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.
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.
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