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.
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