When Should You Walk Away From Your Marriage?
During marriage, couples acquire the rights to some of the property and assets, as well as debts, acquired by one or both of them. Marital property doesn’t include things that are considered “separate property “owned by either spouse, for example, property owned before marriage, inheritance, gifts, property specifically excluded by valid prenuptial agreements, and property gained after legally separating. In addition, keep in mind that you are also on the hook still for your separate debts from before marriage.
Reasons for Divorce
Like a majority of states, Utah allows both no-fault and fault-based divorce. In a no-fault divorce, spouses don’t have to prove that the other’s misconduct caused the breakup of the marriage, so these types of case are generally faster and less expensive. Utah provides two kinds of no-fault grounds: “irreconcilable differences” and living apart for at least three years under a separate maintenance order issued by any state. If you and your spouse can’t agree on an amicable divorce, you can file for a fault divorce, where you have to show that your spouse engaged in some type of misconduct that caused the marriage to fail.
Grounds For Divorce In Utah
There are a number of grounds for divorce in Utah, which include:
• Impotency of the respondent at the time the marriage took place
• Willful desertion for more than one year
• Willful neglect to provide the common necessities of life
• Habitual drunkenness
• Felony conviction
• Cruel treatment resulting in mental distress or bodily injury
• Incurable insanity
• Prior to filing, the respondent must have been adjudged insane by appropriate authorities in Utah or another state
• Competent witnesses must testify to the respondent’s state of incurable insanity
• Irreconcilable differences
• When spouses have lived separately under a Decree of Separate Maintenance for three years without cohabitation, in any state.
How Long Until My Divorce Can Be Finalized?
There is no single, concrete answer to this question, for one very simple reason: no two families are exactly alike, which means no two divorces are exactly alike. The length and complexity of your divorce will depend heavily on factors such as:
• Whether you are able to waive the minimum waiting period.
• Whether you are able to obtain a default judgment.
• Whether your divorce is contested or uncontested
• Whether you have any minor children.
• Whether your spouse files an appeal after the divorce.
Waiving the Minimum Waiting Period
In Utah, there is usually a minimum 90-day waiting period before a divorce may be granted. However, this delay may be waived if you can prove the waiver is warranted by extenuating circumstances. To waive the waiting period, you will need to file a Motion to Waive the 90-Day Waiting Period with the help of a divorce attorney. If your spouse objects by filing a Statement Opposing Motion to Waive 90-day Waiting Period in response, you must then file a Reply. Additionally, the judge will not decide anything until either you or your spouse files a Request to Submit for Decision. You may also request a hearing on the matter. While 90 days is the minimum duration of most Utah divorce cases, cases which need litigation to settle strong disagreements can take several years.
Starting the Divorce Process
• Fill out a Summons: The first step in getting a divorce is telling the court that you would like to dissolve your marriage. The specifics of this will depend on your state and county, so contact your local court to obtain the correct papers. There may be additional forms such as a marriage petition, property declaration, or other declarations pertaining to your relationship. Make sure you have found all the forms necessary for filing in your state. Fill out the papers on a computer or using blue or black ink as clearly as possible. If you find the forms difficult to navigate you may want to consider hiring someone to assist you. If you and your spouse are separating amicably, agree which one of you will start the process as court proceedings usually have a plaintiff and defendant (or petitioner and respondent). It does not matter much, but the plaintiff may have slightly more to do. Some states do also allow Joint Petitioning, in the simplest cases. If you have no children and little shared property, check if there is a marriage dissolution packet available at your local court.
• Have the dissolution forms reviewed: There are many states that offer free legal advice at family courts so take advantage if it is available to you. You can also consider hiring legal counsel to make sure the process goes smoothly. Some attorneys can be hired just to help with certain tasks, and in some cases paralegals can be hired to complete forms, so it does not have to be as expensive as you might think.
• Make additional copies: Keep a copy of the summons for yourself. You will also need a copy for your spouse. The original is to be filed with the court.
• File the papers: You will turn in the original as well as the copies to the county clerk. Your papers will be reviewed and, presuming everything is in order, stamped as “filed.” The court will retain the original summons and any other papers as the official beginning of divorce proceedings. They will return the copies for both parties to you with the “filed” stamp. This stamp means your divorce is officially underway.
• Serve your spouse: Whether you and your significant other have been in contact during this process or not, the court needs to know that your spouse is officially aware that the divorce is a concern of the court. Your spouse can receive their copy of the papers from anyone over 18, other than you. It can be a friend or family member, or a hired professional server. The plaintiff is not allowed to serve the papers. In many states you can also deliver them by certified mail, as long as the other party is willing to fill out an acknowledgment of receipt form.
• File proof of service: If your spouse receives the forms from a personal server, the server has to provide you with a form attesting to this that can be filed with the court. If your spouse accepted service by mail, it may be your duty to file the return receipt with the court.
Coming to an Agreement
• Decide with your spouse that you want to make an agreement: In order to get a quick and easy divorce in any state, you will need to write up an agreement with your spouse on all contestable issues. If you are at odds emotionally or practically from the start, it will be difficult to work out these details. In many cases it may be useful to hire a mediator to assist you even when things seem straightforward. A mediator is a legal professional who works for both of you. If you have children or complex finances you may also want to consider hiring lawyers to draw up your divorce contract even if you are in general agreement. The right lawyer does not have to make the divorce into a battle but can just make sure you are filing things to your best interests. If you hire lawyers, each side should have their own, although they can still work amicably.
• Reach an agreement about property distribution: You will need to decide who gets every piece of personal and real property that you, your spouse, or the two of you own. This includes but is not limited to bank and investment accounts, vehicles, and real estate. Anything which is legally owned would most easily be divided in half or according to the party whose name is on it, but sometimes married couples do not worry about putting names on property with a concern for possible separation. Be fair about the how the property was understood during the marriage. This also includes personal items, furnishings, gifts, artwork and memorabilia.
• Divide any debt fairly: Debts accrued during the marriage should be divided between you and spouse according to each party’s ability to pay the debt, who incurred the debt, and how much property each party is receiving. A mortgage is often one of the most complicated debts to divide. If it is possible to sell the house, all that has to be agreed is the division of funds, but if one party intends to keep the house, they will have to keep the debt as well, and the bank has to approve that. In some cases, the house may have to be sold even if that wasn’t the original plan, simply because one party cannot shoulder the full mortgage alone. Credit card debt should be divided at separation, even if it is just onto other credit cards. Try not to keep your finances entangled. In some states, even credit card debt that is not in your name but that was incurred by your spouse during the marriage may be your liability.
• Consider alimony or spousal support: If you or your spouse has been out of the workforce in order to raise children, take care of a family member, or because of a disability, alimony or spousal support may be warranted. Be careful when agreeing to pay alimony or spousal support, as you may not be able to modify that agreement later
• Reach an agreement on child custody and visitation rights: If you have children, you will need to decide which party the children will live with (the custodial parent) and how often and when the children will visit with the other party (the non-custodial parent). Most states have plans or worksheets of some kind available to help couples come to agreements on this issue. Some states will leave the issue more open but still provide assistance to make the best decision for the child. Check what the law requires in your state’s parenting guidelines.
• Come to an agreement on child support: All states have laws, which presume that the non-custodial parent should pay child support to the custodial parent. To determine how much child support should be paid in your situation, check your state’s website for a child support worksheet or calculator. You can locate your state’s website by following the appropriate link from the Internal Revenue Service’s (“IRS”) State Government Websites page.
• Write up your agreement: As you make these decisions, keep things in writing, and when you have covered everything, type up the official agreement so that both of you are satisfied with the language and level of detail. Check with your local court whether to have such a document signed and notarized, or whether it will be more useful referentially for filling out official court forms.
Filing Divorce Papers
• Locate the proper forms: Many states offer state-approved forms for uncontested or agreed divorces. Other states do not, so you may have to spend some time and possibly some money to obtain the correct forms. To locate the proper forms Visit your state’s website by following the appropriate link from the Internal Revenue Service’s (“IRS”) State Government Websites page. Use a search engine to search “your state divorce forms”. Check with your County Clerk’s Office. If the forms aren’t available online, call or stop in and ask for a copy of the forms you need.
• Complete the forms: Follow all of the instructions that came with your forms. If you did not get instructions, try to answer every question as completely as possible, while remaining brief. Type or print in blue or black ink when filling out court forms. Write clearly and do not skip portions. Divorce papers will often include several affidavits or unclear legalistic forms, so be prepared to spend some time getting things in order. If you need help, check with the court clerk and/or local bar association to see if your jurisdiction offers free or low cost assistance to pro-se parties.
• File the forms with the proper court: Your forms should be filed in the county in which you or the other party resides. Check with the court clerk’s office if you are unsure which court in your county handles divorces. You will need to submit more than one copy of each form as well as a filing fee, so call the Clerk’s office first, to find out how many copies of each document you should bring, what the filing will be, and what forms of payment are accepted.
• Attend any necessary hearings: Uncontested or agreed divorces generally do not require the parties to appear in court, but some jurisdictions may conduct a brief hearing. Be sure to attend any hearings the court schedules and bring any documentation it requests. Be punctual if you are required to attend any official hearings. Plan your day so that you can be sure to arrive early.
• Dress conservatively: You don’t need to go out and buy a new suit or outfit – just find a clean, well fitting, and as respectable as possible set of clothing. A nice button down shirt and a pressed pair of slacks will do the trick. A man can add a tie and a woman might prefer a long skirt. Be respectful in court. Address the judge as “Your Honor” and “Sir” or “Ma’am”. Stand when speaking and spoken to.
Finalizing Your Divorce
• Complete any necessary classes, courses, and/or tests: Many states have parenting classes and education courses that some or all divorcing parents are required to take before a divorce will be granted. Check with the county clerk, the court, or an attorney to determine if there are any instructional courses you need to take in order to have your divorced granted.
• Obtain and file any remaining forms: Once your waiting period is over your Final Decree or Decree of Dissolution will be granted by the state. You may then be required to file this decree as well as other remaining documents as a way to confirm that it needed no modifications and was correct. If you are unsure what you need to file besides the final decree, check the instructions that came with your form, or with the Clerk of Courts.
• Wait for a copy of your decree: Once the Judge signs your final decree, the court will mail you a certified copy of the decree or a notice telling you it is ready for you to pick up. If you do not receive anything from the court within your state’s given jurisdiction time (usually 30 days) of filing your final documents and/or attending your final hearing, call the court to inquire. The court typically allows a standard length of time during which modifications, corrections or reforms can be filed by either party.
When you need a divorce lawyer, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506