What Stricter Divorce Laws Could Do For Our Families

What Stricter Divorce Laws Could Do For Our Families

If you are considering a divorce in Utah, it is important to understand the divorce laws and how they apply to your situation. This guide will help you understand the rules and procedures so that you can equip yourself with the information you need to get through divorce in Utah.

Equitable Distribution and Asset Division

Utah is an equitable division state. This means that property is divided fairly and equitably, although not always equally. The court can divide all marital property regardless of which spouse holds title to the property or where it is located. Before assets can be divided, it must be determined which assets are separate and which assets are part of the marriage. In general, assets acquired during a marriage through a date of separation are considered marital property, except in some cases of gifts or inheritance.

Deciding what a fair distribution of property is includes several factors, such as how long the marriage has lasted, the age and health of the parties, their occupations, the amounts and sources of income and related matters. Each party gets to keep their non-marital property, unless that property has been combined with marital property or is used in such a way that it takes on the legal status of marital property.

Debts

Debts in Utah must also be divided in a divorce. Both spouses are equally responsible for joint debts that are incurred for a family purpose during the course of a marriage (such as buying a house or a car). However, in some cases, the person who keeps the property after divorce will be responsible for paying off the debt.

Gifts and Inherited Property

When one spouse receives a gift or inheritance in Utah, it is considered separate property and not subject to equitable distribution. But if a spouse commingles a gift or inheritance with marital assets, it can become part of the marital assets of a marriage. For an asset to continue to be claimed as separate property, a spouse should be prepared to provide evidence that the asset is indeed separate property and has not been commingled with marital assets.

A way to protect a gift or inheritance is to have a spouse sign a pre- or postnuptial agreement agreeing that the asset belongs exclusively to the other spouse, no matter how it is used in the marriage.

Pensions, IRAs, 401Ks and Retirement Plans

As a general rule, any funds paid into a retirement account from the date of marriage through the date of separation are considered marital assets. If both spouses have retirement or pension plan benefits, each will be awarded their own benefits. Utah courts have recognized that it is best for the spouse who contributes to the retirement or pension plan to receive all of the benefits and for the other spouse to receive something of equal value, such as equity from the home or cash or other property. If there is nothing of equal value to give to the other spouse, then the retirement benefits may have to be split. This is done by having an attorney or a specialized firm create a qualified domestic relations order, more commonly referred to as a QDRO.

The QDRO must be approved by the courts and then it is submitted to the plan administrator who must also approve it. This establishes that a spouse can be considered an alternate payee, and the account is divided according to the specific written instructions of the QDRO.

Spousal Support in Utah

Alimony is sometimes known as spousal support in Utah. It can be granted before, during or after a divorce takes place. Either spouse can request alimony which may be granted temporarily or for a longer period of time after a divorce takes place. According to state laws, the court may consider the following and other factors when deciding whether to award alimony:
• The financial condition and needs of the party who would receive alimony. This includes the recipient’s monthly debts and obligations, and their ability to pay these debts.
• The recipient’s earning capacity or ability to produce income. This includes past employment history, ability or inability to work and income received from all sources, including passive income. This also includes the impact of diminished workplace experience resulting from primarily caring for a child of the paying spouse.
• The ability of the paying spouse to provide support. This includes income from all sources weighed against their debts and obligations. As a general rule, debts may not be incurred to defeat alimony.
• The length of the marriage. The longer the marriage, the stronger the case for alimony.
• Whether the recipient party has custody of minor children who need support.
• Whether the recipient worked in a business owned or operated by the other spouse.
• Whether the recipient contributed to increase the other spouse’s skill by paying for their education or by allowing them to attend school during the marriage.
The court may also consider the fault of the parties in determining whether to award alimony and its terms. “Fault” means any of the following conduct during the marriage that substantially contributed to the breakup of the marriage:
• Engaging in sexual relations with a person other than the party’s spouse
• Knowingly and intentionally causing or attempting to cause physical harm to the other party or minor children
• Knowingly and intentionally causing the other party or minor children to reasonably fear life-threatening harm
• Substantially undermining the financial stability of the other party or the minor children
Alimony automatically ends when the recipient dies or remarries. If there are substantial material changes in circumstances from the time of divorce, either party may petition the court for an order modifying alimony.

Child Support in Utah

Both parents are legally responsible for supporting their minor children in Utah. This obligation continues until a child turns 18 or has completed high school, whichever is later. If a child has special needs or is disabled, this obligation may extend even further.

Utah law establishes Child Support Guidelines to calculate a parent’s child support obligation. The exact amount is driven primarily by each parents’ income. The guidelines have three components:
• Base child support
• Medical care
• Child care expenses

Child support is calculated by a formula established by Utah Code Section 78B-12-301.

The courts have fill-in-the-blank Child Support Worksheets to help you calculate child support and an interactive web Child Support Calculator that will make the calculations and prepare the worksheets for you. The calculations are different depending on the custody arrangements.

If a health care policy is available at a reasonable cost, that premium will be shared by both parents. Parents are also required to share work-related child-care expenses equally. Courts have discretion to deviate from guidelines if a valid reason can be presented by either side.

Child support payments can be made between parents or through the Office of Recovery Services (ORS). ORS also helps establish and enforce financial and medical support for children. When parents do not obey child support guidelines, they can be held accountable through various legal means. The enforcement order can include a judgment for money owed. The court may also find a party in contempt of court and order the party to pay a fine or serve time in jail.

Child Custody in Utah

Courts based child custody in Utah based on a child’s best interests. There are several factors that are used to determine what those best interests are, but a judge will not give preference one way or the other based on a parent’s gender. Some of the factors include:
• moral and financial conduct of the parents
• history and nature of parent’s relationship with their children
• ability and desire to care for the children
• willingness to allow frequent and continuous contact between the children and the other parent whether or not domestic violence, neglect, or abuse sexual or emotional abuse involving the child, parent or a household member of the parent is present
• a child’s relationship with extended family members of other individuals who may significantly affect the child’s best interests
• the court can consider the children’s desires and gives added weight to the desires of children who are at least 14 years old
There are two parts to custody in Utah. They are legal custody and physical custody.
• Legal custody is about who has the right to make important decisions about the children.
• Physical custody is about where the children live.
Courts strongly prefer to grant joint custody to both parents, assuming there are no negatives that are present. The belief is that it is in the best interest of the child to have a frequent and meaningful relationship with both parents, especially with younger children. Before any final custody and visitations agreements are approved, parents must create a detailed parenting plan.
All parties must obey court orders. However, either parent can petition the court to modify a custody order or a parenting order. They must show there are substantial material changes in circumstances since the order was issued and if the modification would be in the best interests of the children.

Substance Abuse

Substance abuse is a fault-based ground for divorce in Utah. Although it is more difficult to prove than in a no-fault divorce, some spouses may choose to go this route because it can have a profound impact on child custody issues. When drug or alcohol abuse is present, Utah courts can deny or limit child custody and visitation rights in an effort to protect the children to the highest degree possible.

Divorce Process

Disclosing Assets

Disclosing assets is required in Utah so that an equitable distribution of assets can take place. Once information has been disclosed, there is a legal obligation to update information as it changes or becomes available.

According to Utah law, parties must disclose:
• Discoverable information – A list of the people who know about the case and what they know. This includes people who could provide information to support the case or defenses to the case.
• Witnesses – A list of witnesses they might call who can support of their case, and a summary of what they will say.
• Documents supporting case – Copies of all documents which support their case.
• Electronically stored information – Copies of all electronically stored information (including emails, text messages and social media posts) they have or have control of which support their case.
• Tangible things – All physical object they have or control which support their case.
• Documents referred to in pleadings – Copies of all documents referred to in the complaint, petition or answer.
• Damages – An estimate of damages claimed and copies of documents or other evidence that support or explain the estimate.
• Agreement to Satisfy, Indemnify, or Reimburse – Copies of any agreements where someone else might have to pay the judgment, or reimburse them for the judgment, including insurance.

Spouse’s Default

When a spouse is served with papers in a divorce in Utah, they have 21 days to file a response (30 days if served outside the state). If a party does not answer a complaint within the allotted timeframe, the other party can seek a default judgment. This means a spouse will forfeit their right to contest any terms of the divorce, including issues such as child custody, support, alimony and a division of assets and debts. In some cases, it may be possible to seek an extension, such as if there is a health or family emergency. The Servicemembers Civil Relief Act creates special rights for service members. One of those rights is to protect against default judgments in civil cases that the service member may not be aware of.

Domestic Violence

When domestic violence is present in a Utah marriage, it can have serious consequences on how child custody and visitation is determined. If a parent has committed domestic violence or if there is a temporary restraining order in place, the court can either order supervised visitation or completely deny access to any children in the marriage. The courts may also allow visitation but will rule on whether or not a third party should make the transfers between parents.

In all cases, is domestic violence is imminent, a victim should call the police. After vacating a residence, it is possible to ask a court for an order of protection to legally keep a spouse away from you either before a divorce action begins or during a divorce already in progress.

Health Insurance

Parents going through a divorce in Utah are required to maintain health insurance for their minor children. This will continue after a divorce takes place as well. However, most private insurers will not continue to cover an ex-spouse after a divorce. A spouse will either need to negotiate coverage as part of a settlement or seek coverage through other means.

Infidelity and Adultery

When a spouse has sex voluntarily with someone other than their spouse while they are still married in Utah, this can be used as one of the fault-based grounds for getting a divorce. Infidelity does not really alter the outcome of a divorce in a major way other than when dividing marital property or determining alimony. It is one of the fault-based reasons that can influence how alimony is awarded.

In some cases, infidelity may also impact custody and parenting decisions. Moral conduct is one of the factors a court can consider in determining who should be the primary custodial parent. Utah courts want to place children in the most stable environment available. New relationships that have not withstood the test of time place the child at risk of further change in the future.

Military Divorces in Utah

There are specific rules and processes that govern how military divorces are handled in Utah. Some elements are the same as a civilian divorce, but other elements are different.

To start, you or your spouse must either live or be stationed in Utah so that proper jurisdiction can apply. The same grounds that apply for a civilian divorce also apply for a military divorce. You can cite either no-fault or fault-based grounds.

When a spouse is in the military, they are protected by the Soldiers and Sailors Civil Relief Act. This allows them to postpone the divorce while they are overseas or otherwise not able to adequately respond to the petition due to military service commitments. A servicemember can choose to waive delaying the divorce by signing paperwork that will allow the divorce to proceed uncontested.

A division of retirement benefits are governed by the Uniformed Services Former Spouses’ Protection Act. This legislation directs how a former servicemember’s retirement benefits should be divided after divorce. A key element is that the former spouse must have been married to the former servicemember for a minimum of 10 years while the military member has served on active duty. Child support and spousal support are determined by Utah state guidelines. But federal law dictates that these awards may not exceed 60% of a servicemembers pay and allowances.

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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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