Utah Divorce Code 30-3-36
Utah Code 30-3-36: Special Circumstances
1. When parent-time has not taken place for an extended period of time and the child lacks an appropriate bond with the noncustodial parent, both parents shall consider the possible adverse effects upon the child and gradually reintroduce an appropriate parent-time plan for the noncustodial parent.
2. For emergency purposes, whenever the child travels with either parent, all of the following will be provided to the other parent:(a)
a. an itinerary of travel dates;
c. places where the child or traveling parent can be reached; and
d. the name and telephone number of an available third person who would be knowledgeable of the child’s location.
3. Unchaperoned travel of a child under the age of five years is not recommended.
Section 10 of the 1985 Act provides that the court can depart from “equal sharing” if this departure is justified by “special circumstances”. The law is not black and white in regard to what exactly constitutes a ‘special circumstance’ however; Section 10(6) provides an illustrative list of possible “special circumstances”:
• The terms of any agreement between the parties on the ownership or division of any of the matrimonial property;
• The source of the funds or assets used to acquire any of the matrimonial property where those funds or assets were not derived from the income or efforts of the parties during the marriage;
• Any destruction, dissipation or alienation of property by either party;
• The nature of the matrimonial property, the use made of it (including use for business purposes or as a matrimonial home) and the extent to which it is reasonable to expect it to be realized or divided or used as security;
• The actual or prospective liability for any expenses of valuation or transfer of property in connection with the divorce.
The circumstances mentioned will not necessarily guarantee a departure from equal sharing but rather it will be a matter for negotiation, or in litigation for consideration by the Sheriff or Judge determining the case. The Sheriff or Judge must be satisfied that equal sharing would not be fair in the circumstances of the case and ultimately it will be a matter for agreement or exercise of the court’s discretion.
Common Law Marriage and Divorce
Common law marriage is an informal form of marriage. Couples that have an informal marriage do not obtain a marriage license. Instead, they live together for a significant period of time and have the intention to marry. Without a license or a wedding, these couples can be considered married in some states because they act like they are married by living together and caring for one another. Not every state recognizes common law marriage as a legal form of law. The only states that allow this type of marriage are:
• The District of Columbia
• Georgia (for marriages before 1/1/1997)
• Idaho (for marriages before 1/1/1996)
• New Hampshire (for inheritance purposes)
• Ohio (for marriages before 10/10/1991)
• Rhode Island
• South Carolina
Couples are considered married by common law in these states if they act like they are married, for instance by wearing wedding rings, using the same last name, referring to each other as “husband” and “wife”, and filing joint tax returns. Even in states that do not allow common law marriages, these couples will get considered married. This is because the marriage is valid in the state that it occurred in, and all other states must recognize valid marriages of another state. This qualifies as a special circumstance.
Common Law Divorce
While the process of becoming informally married is very different than a traditional marriage, the divorce process is the same for both types of marriage. The rights and obligations present in a common law marriage are the same as those for a traditional marriage. As a result, ending the marriage means undergoing the traditional divorce process. You will have to file the procedures for divorce in the state that you live in. The divorce process will vary based on where you live. However, because many states do not allow common law marriage, if you live in one of these states, you won’t have to worry about filing for divorce, since your state will never recognize your marriage as legal in the first place. If you are not sure if you are legally married as a result of common law marriage in your state, and you want to get a divorce, you should discuss your situation with a divorce lawyer.
Divorce and annulment have similarities; however, they are also two different procedures that can mean slightly different things. Both are court proceedings that dissolve a marriage, however, a divorce imply that the marriage has simply ended, while an annulment treats the marriage like it never happened. Because divorce can carry a negative stigma, some people prefer to get their marriages annulled. If this is the case, a civil annulment is applied for. However, some people want to get an annulment because it makes it easier to remarry within the church if the marriage is not recognized. If this is the case, you should get a religious annulment.
Marriage Annulment Reasons
If you want to get a civil annulment, there are several grounds that you can file for an annulment on. These vary slightly by state, so you should hire a divorce attorney to help you understand the exact laws and procedures in your state. However, getting an annulment will generally require at least one of the following reasons. The first reason to get a civil annulment is fraud or misrepresentation. If your spouse knowingly lied to you about something like his or her ability to have children, a previous and existing marriage, or lying about reaching the age of consent, these are grounds for an annulment. Another reason to get an annulment is the ability or refusal to consummate the marriage. If your marriage is never consummated, for whatever reason, you will have grounds for an annulment. Concealment is another ground for an annulment. If your spouse conceals an addiction to drugs or alcohol, children from another relationship, a sexually transmitted disease, a felony conviction, or impotency, you might be able to get an annulment. The final grounds for an annulment is a misunderstanding, such as if one spouse wants to have children and the other does not. This is the most open-ended of the reasons for an annulment, so you might want to talk to a lawyer about your specific circumstances and the likelihood of making a case for an annulment.
The legal reasons for divorce can vary by state, but below are some of the most generally accepted grounds to file for at-fault divorce:
• Adultery or cheating
• Mental incapacity at time of marriage
• Marriage between close relatives
• Impotence at time of marriage
• Force or fraud in obtaining the marriage
• Criminal conviction and/or imprisonment
• Mental or physical abuse
• Drug or alcohol addiction
• Mental illness
Again, check your state laws to be sure, but these are the most common grounds for divorce across various states. You’ll be required to provide proof of misconduct during the court proceedings; so, be prepared. For example, if you’re divorcing on the grounds of adultery, you’ll need more than just a strong suspicion your spouse is sleeping around.
Filing for No-Fault Divorce
All states offer a form of no-fault divorce. However, you still need to file based on legal grounds. In no-fault cases, the grounds are commonly referred to by some of the following terms:
• Irreconcilable differences
• Irretrievable breakdown
This is simply a formal way of saying you and your spouses have serious differences that have broken your marriage beyond your ability to repair it. No one is at fault, but you still want a divorce. No-fault divorces are quite common and are usually the faster and simpler form of divorce proceedings. Because there is no burden of proof, the trials tend to be quicker and cheaper than their counterparts.
Deciding Between Filing for At-Fault or No-Fault Divorce
Making the right determination depends on a few factors. First, do you have hard proof of misconduct? If you don’t, filing for no-fault is going to be your only option. Similarly, if your budget is constrained, you may not want to endure the long, dragged out process of an at-fault divorce. However, in states where a spouse’s actions and misdeeds can influence the Court’s division of property and allocation of alimony, it may be worth bringing it up. For example, if your spouse lavished expensive gifts on his/her lover, you may want to ask the court to be reimbursed for the share of monies squandered as part of the final settlement. Ultimately, you’re the only one who can decide what the right path is going to be for you. While you can certainly consult a lawyer about your options, the final decision will be yours.
Resolving Issues on Your Own
If you and your spouse are on good terms, you can itemize your marital issues, and attempt to reach a meeting of the minds on each one of them. It would be wise to do some advance research to learn about the topics you’ll need to discuss, so you don’t omit anything. Typically, divorce issues include any or all of the following:
• property and debt division
• alimony or spousal support
• child custody, and
• child support.
Once you’ve come to an agreement on all of your divorce-related issues, you should have a divorce lawyer formalize your settlement by preparing a Property Settlement Agreement (also known as a Marital Settlement Agreement). This will normally contain important legal clauses, in addition to the terms you’ve reached. Remember though that you and your spouse cannot use the same attorney you should each have your own lawyers review the agreement on your behalf.
Mediating Your Divorce
Mediation is a popular method of ADR. Mediators are trained professionals (typically lawyers or child custody experts) who assist the spouses in working out their differences. The couple will provide the mediator with information and documents (such as tax returns) in advance and meet with the mediator as often as necessary to reach a settlement. The goal is to reduce the settlement terms to a written agreement. Mediation is ordinarily much less stressful than a contested divorce. Sessions are relatively informal and often take place in the mediator’s office. And although the couple can have attorneys with them, it’s not required, which adds to the cost-effectiveness of the mediation process. (In fact, having attorneys present can at times be counterproductive, particularly if an attorney is combative.) You will have to pay the mediator, but that cost is usually shared.
Collaborative divorce is another form of ADR. It’s similar to mediation in that the goal is to reach a settlement, but it’s structured differently. Collaborative divorce doesn’t involve a mediator or other intermediary. Rather, the spouses each have an attorney, and participate in “four-way” sessions with that goal of reaching an agreement. Attorneys who practice collaborative law often have special training in this area. And to ensure that they keep their focus on settlement, the law in most if not all states won’t permit them to represent the spouses in future court proceedings, should the negotiations fail. Collaborative law is grounded in a team approach. All participants are obligated to work together to reach an agreement. Any experts that take part in the process (such as accountants, property appraisers, and child psychologists where custody is an issue) must be neutral and agreed to by both spouses. People tend to opt for collaborative divorce over mediation if they’re more comfortable having an attorney represent them in all phases of the settlement proceedings. But remember, if you’re unable to reach an agreement, you have to start the formal divorce process with new attorneys. This could mean a significant additional expense, because these new lawyers will have to familiarize themselves with the case, from scratch.
Divorce arbitration is yet another tool in the ADR kit and is often utilized by couples who don’t believe they’ll be able to settle their dispute, but want someone to decide their issues outside of the normal court process. Whereas mediation and collaborative divorce are geared to settling your case, the goal of arbitration is for the arbitrator to adjudicate the matter and issue a decision, much as a judge would after a trial. (Divorce arbitration may not be available in all states, so check with a local attorney to find out if it’s practiced where you live.) Arbitration has benefits over a court trial. You and your spouse get to choose the arbitrator. In court, you can’t pick your judge. Also, you can decide to relax the usual rules of evidence. For example, you might agree to allow the production of a witness’s sworn written statement, rather than having the witness appears in person. Additionally, you’ll work together to set the dates, times, and duration of your arbitration sessions. That’s a luxury you don’t have in court, where contested divorces can linger for over a year, and you can spend hours each time you’re there, just waiting for a judge to become available. The major drawback of arbitration is that the decision is binding and final. Barring some impropriety on the arbitrator’s part, you ordinarily can’t appeal. With a court trial, you can appeal almost as a matter of course. Also, in addition to paying your lawyers, you’ll have to pay the arbitrator. This can get pricey, particularly with complex cases.
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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!
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